Before Steadman, Schwelb and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Petition for Review of a Decision of the District of Columbia Public Schools
This case, which comes to us after three remands to the agency at the request of the parties, involves a challenge to a decision of the District of Columbia Public Schools ("the DCPS") requiring a non-resident mother to pay tuition for her daughter, even though, through a mutual oral agreement made at the time of their divorce, the mother shared joint custody of her daughter with the child's natural father, a District resident. Because there are inconsistent findings and credibility determinations by the first and second hearing officers, and because the agency has not interpreted applicable statutory and regulatory provisions in the first instance, we again remand this matter to the agency, with specific instructions to fashion a determination which responds to the specific questions set forth at the end of this opinion.
This case has had a prolonged existence. The record on review shows that the minor daughter of petitioner Crystal Kirkpatrick, a resident of Maryland, and Jose Moris Gutierrez, a resident of the District of Columbia, attended a District elementary school in the school years September 1993 to June 1996. *fn1 In December 1995, following investigation of an anonymous tip, the DCPS advised Ms. Kirkpatrick that tuition payments in the amount of $14,255.00 were due and owing for her daughter. On February 26, 1996, after a January 1996 hearing, which Mr. Gutierrez did not attend, officer Leonard G. Pinkney determined that the "DCPS did not prove by a preponderance of the evidence, that Ms. Crystal Kirkpatrick owes DCPS $14,255.00 for [her daughter's] attendance and enrollment in DCPS." In reaching this determination, Mr. Pinkney stated: "The testimony of Ms. Kirkpatrick, the Student Residence and Data Verification Form, and the memorandum on the issue of parental residency for parents residing in the District of Columbia and Maryland are credible and persuasive." *fn2 Thus, based upon Ms. Kirkpatrick's testimony and other evidence introduced at the hearing, including a Thaddeus Stevens Elementary School questionnaire and the Student Residence and Data Verification Form, which listed the child's address as 1818 Vernon Street, N.W., Mr. Pinkney "presumed that [the child] may have spent 50% of her time with each parent," in accordance with a mutual and private oral "joint custody" agreement entered into when the parents were divorced. *fn3 With respect to the actual sum owed by Ms. Kirkpatrick, Mr. Pinkney concluded, somewhat ambiguously, that:
1. The tuition assessed ($2,643.00) for the second semester of the 1993-94 school year is denied;
2. The tuition assessed ($5,564.00) for the 1994-95 school year is reduced to $2,782.00 owed;
3. The tuition assessed ($6,048.00) for the 1995-96 school year should be reduced to $3,024.00 if [the child] completes the entire school year in DCPS. If not, the amount should be prorated then divided in half to determine the amount owed.
Thus, the exact amount owed by Ms. Kirkpatrick was subject to further calculations.
Ms. Kirkpatrick appealed the hearing officer's determination to the Superintendent of the DCPS, arguing that the DCPS rules did not require that her daughter be under the "sole custody or control of the parent who reside[s] in the District of Columbia" (emphasis in original). The Superintendent, relying on the rationale of the hearing officer, Mr. Pinkney, denied her appeal on March 8, 1996, and stated that she owed $8,449.00. *fn4 Ms. Kirkpatrick filed a timely petition for review in this court on March 22, 1996.
As a result of the District's November 25, 1996, motion, the record was remanded to the DCPS. The District requested the remand so that the DCPS could explain the reason for the assessment of only "one-half of the tuition to the out-of-state parent." *fn5 In response to the remand, Mr. Pinkney clarified his determination, and then amended his clarification, on November 6, 1997, and January 13, 1998, *fn6 stating in part that:
1. Mr. Jose M. Gutierrez does not provide care, custody and substantial support for his daughter. .
2. Mr. Gutierrez failed to appear at the hearing and provide testimony that would have corroborated Ms. Kirkpatrick's testimony regarding the custodial arrangement for [his daughter's] care, custody and support, . . . and to rebut the inference that [his daughter's] residence with [him] during the school year is bogus.
3. The testimony given by the investigator (Mr. Hester) regarding his findings on his visit to the home during the morning hours of January 26, 1996 and his telephone call to the home on January 29, 1996 weighted heavily on the issue whether [the child] actually resided [with her father] full time during the school year. . . . The Hearing Officer also concluded that if she had been residing with her father on a full time basis, it ...