T.L. v. BOARD OF EDUCATION OF THE TOWNSHIP OF UNION, UNION COUNTY
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5566-15T4
T.L., on behalf of minor child, A.B.,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE TOWNSHIP
OF UNION, UNION COUNTY,
Respondent-Respondent.
Submitted December 12, 2017 – Decided December 27, 2017
Before Judges Yannotti and Carroll.
On appeal from the Commissioner of Education,
Docket No. 38-2/15.
Manes & Weinberg, attorneys for appellant (Amy
Jane Agnew and Beth C. Manes, on the briefs).
Sciarrillo, Cornell, Merlino, McKeever &
Osborne, LLC, attorneys for respondent Board
of Education of the Township of Union (Paul
E. Griggs, of counsel and on the brief;
Kathleen A. Nestor, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey
Commissioner of Education (Nicole T.
Castiglione, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
In a July 13, 2016 final agency decision, the Commissioner
of Education (Commissioner) adopted the initial decision of the
administrative law judge (ALJ) finding that petitioner T.L. was
not domiciled in Union Township during the 2014-2015 and 2015-2016
school years. Consequently, T.L.'s1 minor child, A.B., was not
entitled to a free public education in Union Township, and T.L.
was ordered to reimburse the Township Board of Education (Board)
for the cost of A.B.'s education for that period. In this appeal,
T.L. contends the Commissioner's final administrative decision was
arbitrary and capricious and that the ALJ's factual determinations
and legal conclusions, which were adopted by the Commissioner,
were not supported by substantial credible evidence in the record.
Having considered the record in light of T.L.'s arguments, we
affirm.
T.L. is A.B.'s mother and primary caretaker. It is undisputed
T.L. owns a home on L. Avenue in Hillside (the Hillside residence).
She purports to use the Hillside residence for "investment"
purposes, although concededly she has never rented it. Instead,
T.L. asserts her out-of-state relatives stay there when they visit
New Jersey. T.L. maintains that, since A.B.'s birth, T.L. and
1
We use initials for the parties and others, as well as for the
street names, to protect the confidentiality of the minor child.
2 A-5566-15T4
A.B. have resided at T.L.'s mother's house on M. Place in Union
Township (the Union residence).
In October 2014, A.B.'s first grade teacher implemented a
social studies lesson "requir[ing] students to memorize their home
address in case of an emergency . . . ." Thereafter, the teacher
"show[ed] them their house on Google Earth." However, when shown
the Google Earth image of the Union residence, A.B. stated "that's
not my house, that's my [grandmother's] house." A.B. further
claimed "that's not where I live" and described her home as "past
Popeyes [and] through a tunnel . . . ." The teacher recognized
this description as consistent with a Popeye's restaurant located
on L. Avenue in Hillside. At some point, A.B. told the teacher
"she cannot talk about her house, but was supposed to say [her
grandmother's] house is her house . . . ."
As instructed, the teacher reported the potential residency
issue, and the Board commenced an investigation. An investigator,
Thomas Sheridan, conducted surveillance on the Hillside residence
and observed T.L. leave there and drive A.B. to school in Union
Township on numerous dates between December 8 and December 19,
2014. A second investigator, Anthony Martino, conducted
surveillance on the Union residence and reported A.B. never exited
that home during the same period.
3 A-5566-15T4
By letter dated December 31, 2014, the Board advised T.L.
that A.B. was "not properly domiciled in the school district."
Consequently, A.B. was "not entitled to a free public education
in [Union Township]."
T.L. requested a hearing before the Board's Residency
Committee, pursuant to
N.J.S.A. 18A:38-1. The Residency Committee
held a hearing on February 10, 2015, at which T.L. presented her
driver's license, car registration, credit union statement, Macy's
store credit card, medical bills, voter registration, and postage
from her pharmacy, all bearing the Union Township address.
Following the hearing, the Residency Committee sent Martino to
verify whether A.B. had a room inside the Union residence. Martino
reported:
When I arrived[,] . . . Mother, [T.L.], let
me in, and took me upstairs, and showed me a
room, with a bed, and a few dolls on the bed.
I didn't look in [the] closet, and didn't see
[the] student in [the] room or in [the] house
. . . . As I was leaving, [T.L.] had her coat
on while I was at [the] house, and a grey auto
was double[-]parked, in front of the house
with the motor running.
Sheridan inspected the Hillside residence the following
morning. He noted: "I went into [the] house with [T.L.] and her
mother, [and] upstairs to the two bedrooms. One bedroom had a lot
of bags on [the] floor. Before I could ask her about them, [T.L.]
said [']okay you saw what you came for now it's time to leave.[']"
4 A-5566-15T4
The Residency Committee deemed the results of the two home
inspections "inconclusive." On February 20, 2015, the Board
advised T.L, "[W]e cannot establish your actual residency in the
Township of Union. Therefore, your child is not eligible to remain
at [her present] [s]chool, and will be issued a transfer card on
. . . February 23, 2015." T.L. appealed to the Commissioner, who
subsequently transferred the matter to the Office of
Administrative Law (OAL) as a contested case.
An ALJ conducted a hearing on December 7, 2015. T.L.
testified, and called her mother, K.L., and her next-door neighbor
in Hillside, M.K., as witnesses. The Board presented the testimony
of A.B.'s teacher and the two residency investigators, Sheridan
and Martino.
T.L. testified she is employed as a respiratory therapist at
a Newark hospital and works twelve-and-a-half hour shifts, from
7:00 a.m. to 7:30 p.m., three to four times per week. She
maintained she was working on December 9, 10, 16, and 17, 2014,
when Sheridan allegedly observed her leaving the Hillside
residence with A.B. between 8:30 a.m. and 9:00 a.m. She presented
her employee timecard2 that showed she clocked into work at 6:51
2
During the hearing, there was a dispute over whether T.L.'s
timecard was properly authenticated. While T.L. testified the
timecard reflected a true and accurate copy of the hours she
5 A-5566-15T4
a.m., 7:04 a.m., 7:13 a.m., and 7:12 a.m. on December 9, 10, 16,
and 17, respectively. T.L. thus contended Sheridan's
investigation report was inaccurate.
T.L. also testified she does not drive a silver Hyundai, as
reported by Sheridan. Rather, she drives a green Hyundai SUV, and
asserted Sheridan could not have reliably identified her car
without recording her license plate number. T.L. further testified
that "right next door to [my Hillside residence] . . . there is a
young [female] child that is a year or two difference from my
child[,]" suggesting Sheridan mistook another female child for
A.B. T.L. also presented her driver's license, car registration,
paystubs, Macy's credit-card statement, and hospital bills, all
containing the Union address.
On cross-examination, the Board's attorney questioned T.L.
on the fact she did not produce her tax returns, car loan
statement, cell phone bill, Wells Fargo bank statement, or American
Express credit card statement. Counsel also confronted T.L. with
documentation from the Division of Consumer Affairs showing her
State-issued respiratory care license reflected a Hillside
address. Although T.L. contended she paid bills with respect to
worked, it did not reference the Newark hospital. The ALJ admitted
the document over the Board's objection, opting to "give it the
weight it's worth."
6 A-5566-15T4
her mother's Union residence, she produced no documentation,
instead stating she paid in cash. T.L. was also questioned
extensively regarding utility bills she paid on her Hillside
residence.
The testimony of K.L. and M.K. at the OAL hearing is
summarized accurately in the ALJ's initial decision, as follows:
[K.L.], T.L.'s mother, testified that [T.L.]
and [A.B.] have lived with her in Union for
many years. She stated that [A.B.] leaves
there for school every day, and that they
share the upkeep of the home and share costs
for food and oil. There are no checks written
between them. She indicated that [A.B.] has
never lived anywhere else.
M.K. testified she lives . . . in Hillside,
next door to [T.L.]. She indicated that she
sees T.L. occasionally, but not every day,
perhaps once or twice a month. She testified
that she watches the house and sees the lights
on, but at night only the porch lights are on.
M.K. testified that T.L. does not live there.
M.K. added, "I'm retired . . . everyday I'm home [and] there's no
one in that house at night . . . ."
A.B.'s first grade teacher testified that, once A.B. was
shown the image of the Union residence, she insisted it was her
grandmother's home and she did not live there. Sheridan and
Martino testified in detail about the results of their
surveillance. Sheridan also noted that, at the hearing before the
Residency Committee, T.L. did not deny she was at the Hillside
7 A-5566-15T4
property on the days he observed her. Rather, T.L. indicated she
was there to host a family member.
The ALJ rendered her initial decision on April 15, 2016.
After summarizing the testimony, she found that:
Surveillance conducted over several days at
. . . M. Place in Union Township revealed that
neither T.L. [n]or A.B. resided there. The
surveillance and the testimony demonstrated
that the child was transported from [the
Hillside residence] to school in Union
Township. The school attendance records amply
supported the credible testimony of the
residency investigators.
The ALJ elaborated:
From the evidence submitted, it is clear that
A.B. has been domiciled in Hillside while
attending school in Union Township. A.B.
admitted to her teacher that she does not live
at the Union address. [The Board's]
investigator observed T.L. and A.B. leaving
the Hillside address and driving to [A.B.'s]
[s]chool on five separate school days in
December 2014. No documentation was offered
to support T.L.'s claim that she shares
expenses with her mother at the Union Township
address. The evidence includes numerous bills
from Elizabethtown Gas, PSE&G, and NJ American
Water reflecting usage charges for the
Hillside property that are entirely
inconsistent with T.L.'s claim that no one
resides there. T.L. failed to demonstrate,
by a preponderance of the credible evidence,
that A.B. is entitled to a free public
education in Union Township. To the contrary,
the Board has proven that she is not . . .
domiciled there.
. . . .
8 A-5566-15T4
A.B. was domiciled in Hillside during the days
she attended school in Union. She was
observed leaving the Hillside address early
in the morning, over the course of several
days during an investigation conducted in
December 2014, and being driven to Union
Township to attend school.
The Commissioner issued his final agency decision on July 13,
2016. He adopted the ALJ's decision that T.L. "failed to sustain
her burden of establishing that she was a domiciliary of Union
Township." He further found "no basis in the record – which
include[d] more than thirty exhibits and a transcript of the
hearing – to reject either the ALJ's recitations of testimony or
her determinations of witness credibility." As a result, the
Commissioner adopted the ALJ's finding that A.B. was not entitled
to a free public education in Union Township during the 2014-2015
and 2015-2016 school years. As a result, T.L. was directed to
reimburse the Board for tuition costs incurred during that time
period. This appeal followed.
On appeal, T.L. contends the Commissioner's decision was
arbitrary, capricious, and unreasonable, and not supported in the
record. She focuses primarily on her disagreements with the ALJ's
credibility and factual findings.
"[T]he Commissioner of Education has primary jurisdiction to
hear and determine all controversies arising under the school
laws." Bower v. Bd. of Educ. of E. Orange,
149 N.J. 416, 420
9 A-5566-15T4
(1997). As a result, his "statutory interpretation is entitled
to considerable weight, where not inconsistent with the statute
and in harmony with the statutory purpose." Kletzkin v. Bd. of
Educ. of Spotswood,
136 N.J. 275, 278 (1994). We will ordinarily
uphold the Commissioner's determination unless it is "'arbitrary,
capricious, or unreasonable or is not supported by substantial
credible evidence in the record as a whole.'" G.D.M. v. Bd. of
Educ. of the Ramapo Indian Hills Reg'l High Sch. Dist.,
427 N.J.
Super. 246, 259 (App. Div. 2012) (quoting Dennery v. Bd. of Educ.
of Passaic Cty. Reg'l High Sch. Dist. # 1,
131 N.J. 626, 641
(1993)).
When reviewing a final agency action under the arbitrary,
capricious, and unreasonable standard, we must examine whether the
agency's decision conforms with relevant law; whether the decision
is supported by substantial credible evidence in the record; and
whether in applying the law to the facts, the administrative agency
clearly erred in reaching its conclusion. In re Stallworth,
208 N.J. 182, 194 (2011).
Regarding an administrative agency's factual findings and
credibility determinations,
[t]he governing standard is, of course,
whether the findings made could reasonably
have been reached on sufficient credible
evidence present in the record, considering
the proofs as a whole, with due regard to the
10 A-5566-15T4
opportunity of the one who heard the witnesses
to judge of their credibility. Close v.
Kordulak Bros.,
44 N.J. 589, 598-99 (1965).
If the factual findings are supported by
competent evidence, they will be upheld.
Atkinson v. Parsekian,
37 N.J. 143, 149
(1962); Clover Hill Swimming Club v.
Goldsboro,
47 N.J. 25, 36 (1966); Szumski v.
Dale Boat Yards, Inc.,
48 N.J. 401, 410
(1967). It is not ordinarily our function to
weigh the evidence, to determine the
credibility of witnesses, to draw inferences
and conclusions from the evidence, and to
resolve conflicts therein. Mead Johnson and
Co. v. South Plainfield,
95 N.J. Super. 455,
466 (App. Div. 1967).
[In re Grossman,
127 N.J. Super. 13, 22-23
(App. Div. 1974).]
Factual findings "are binding on appeal when supported by adequate,
substantial, credible evidence," with deference being particularly
appropriate "when the evidence is largely testimonial and involves
questions of credibility." Cesare v. Cesare,
154 N.J. 394, 412
(1998) (quoting In re Return of Weapons to J.W.D.,
149 N.J. 108,
117 (1997)).
An agency head is not bound by the factual findings and legal
conclusions of an ALJ unless otherwise provided by statute.
N.J.A.C. 1:1-18.1(d). He or she reviews the ALJ's decision "de
novo . . . based on the record" before the ALJ. In re Parlow,
192 N.J. Super. 247, 248 (App. Div. 1983). Nevertheless, an agency
head may only reject an ALJ's credibility findings if he or she
"determine[s] from a review of the record that the findings are
11 A-5566-15T4
arbitrary, capricious or unreasonable or are not supported by
sufficient, competent, and credible evidence in the record."
N.J.S.A. 52:14B-10(c). In this case, following his review of the
record, the Commissioner adopted the ALJ's findings of fact,
including her credibility findings, as well as her conclusions of
law.
N.J.S.A. 18A:38-1(b)(1) provides that "[p]ublic schools shall
be free to . . . persons over five and under [twenty] years of
age" who are "domiciled within the school district" or are "kept
in the home of another person domiciled within the school district
and supported by such other person gratis as if he were such other
person's own child . . . ." When a school district "finds that
the parent or guardian of a child who is attending the schools of
the district is not domiciled within the district and the child
is not kept in the home of another person domiciled in the
district[,]" pursuant to N.J.S.A. 18A-38-1(b)(1), the
superintendent or administrator "may apply to [the Board] for the
removal of the child."
N.J.S.A. 18A:38-1(b)(2). In such
circumstances, the parent or guardian is "entitled to a hearing
before [the Board] . . . ." Ibid.
If the Board decides, after a hearing, that a child is not
domiciled within the district, a parent or guardian may "contest
[the Board's] decision before the [C]ommissioner . . . and shall
12 A-5566-15T4
be entitled to an expedited hearing before the [C]ommissioner
. . . ." Ibid. In such proceeding, the parent or guardian has
"the burden of proof by a preponderance of the evidence that the
child is eligible for a free education . . . ." Ibid. If the
parent or guardian fails to satisfy his or her burden, the
Commissioner "shall assess the parent or guardian tuition for the
student prorated to the time of the student's ineligible attendance
in the schools of the district." Ibid.
It is well established that "[a] child's domicile is normally
that of his or her parents." Somerville Bd. of Educ. v. Manville
Bd. of Educ.,
332 N.J. Super. 6, 12 (App. Div. 2000). "'Domicile'
is defined as 'the place where [a person] has his [or her] true,
fixed, permanent home and principal establishment, and to which
whenever he [or she] is absent, he [or she] has an intention of
returning.'" D.L. v. Bd. of Educ. of Princeton Reg'l Sch. Dist.,
366 N.J. Super. 269, 273 (App. Div. 2004) (citation omitted).
Having reviewed T.L.'s appellate arguments in light of the
record before us and the applicable law, we find no basis to
disturb the Commissioner's determination that T.L. and A.B. were
not domiciled in Union Township during the period in question. We
do not reweigh the evidence based on those appellate arguments and
make our own factual determinations de novo, as T.L. would have
us do. As we have explained, our duty is to ensure that the
13 A-5566-15T4
factual findings made by the administrative agency are reasonably
grounded in the record.
It is true that T.L. presented the ALJ with various proofs
that she maintained a Union domicile. Notwithstanding that
evidence, there is sufficient credible evidence in the record to
support the conclusion she was domiciled in Hillside. The
Commissioner adopted the ALJ's decision and found the ALJ's factual
findings were amply supported by the record, which included: (1)
surveillance conducted over a two-week period, during which the
Board's investigator observed T.L. leave the Hillside residence
and drive A.B. to school in Union Township on numerous occasions;
(2) surveillance during the same period in which another
investigator observed that neither T.L. nor A.B. left the Union
residence in the morning; (3) testimony from A.B.'s teacher as to
A.B.'s comments that she did not live at the Union residence; (4)
no evidence to support T.L.'s testimony that she assists with
paying utilities at the Union residence; (5) utility bills for the
Hillside home that the ALJ found inconsistent with her claim that
no one lived there; and (6) T.L.'s failure to produce her tax
returns to show proof of domicile. That evidence, or absence of
evidence, provides a sufficient basis for the Commissioner's
decision.
Affirmed.
14 A-5566-15T4
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