Decision No. 12,790

(August 27, 1992)

SOBOL, Commissioner.--Petitioner, the Board of Education of the Haldane Central School District (the "district"), appeals from refusals by the Board of Education of the City School District of Peekskill and the Pine Bush Central School District ("respondents") to pay tuition for two foster children placed in the district. Petitioner brings separate appeals seeking reimbursement from the school district responsible for the children's tuition for 1990-91 and 1991-92 school years. Since the facts in each case are identical, the appeals are consolidated for decision. They must be dismissed.

On January 17, 1989, the Sullivan County Department of Social Services ("DSS") took two children, Donna and Charles, into its custody; they were then placed in foster care by order of the Family Court. The children were taken from their mother and stepfather, who were living in a truck in a campground located within the Pine Bush School District. After an initial placement in a foster home in the Monticello School District, DSS placed the children with their grandparents, who reside in petitioner's district. The children were enrolled in petitioner's schools on or about December 19, 1989. Although Donna continued to live with her grandparents in respondent's district, Charles was moved to another foster home outside the district on March 13, 1991. Apparently, he was returned to his grandparents' home in petitioner's school district in September 1991.

Upon receipt of notice from DSS that the children were residents of Peekskill at the time they entered foster care, petitioner requested that respondent, the Board of Education for the Peekskill City School District ("respondent Peekskill"), pay their tuition from December 19, 1989 through June 22, 1990. Respondent Peekskill denied responsibility for the children's tuition based on the fact that they had been dropped from the school district's enrollment on December 18, 1988, before they were placed in the custody of DSS. Petitioner then contacted DSS to determine the children's district of residence at the time the agency assumed responsibility for their support and maintenance. By letter dated March 5, 1990, a DSS caseworker informed petitioner that the Pine Bush Central School District ("respondent Pine Bush") was financially responsible for the children's education. Thereafter, petitioner sent a tuition bill to that district covering December 19, 1989 through June 22, 1990. Respondent Pine Bush made payment for that year, but notified petitioner on February 4, 1991, of its subsequent determination that it was no longer responsible for the children's tuition.

Petitioner asks that I find these children residents of Pine Bush Central School District at the time DSS assumed responsibility for their support and maintenance. Petitioner seeks an order directing respondent Pine Bush to pay tuition for Charles for that portion of the 1990-91 school year in which he attended, for Donna for the entire 1990-91 school year, and for both children for the 1991-92 school year. Alternatively, petitioner asks that I find respondent Peekskill liable for their tuition if I conclude that the children did not reside in the Pine Bush district at the time DSS assumed responsibility for their care and maintenance.

Respondent Pine Bush denies any responsibility for the children's tuition while they were placed in foster care. Respondent argues that simply because the family was in a campground in the district when the children were placed in the custody of DSS, does not establish them as legal residents there. In essence, respondent Pine Bush argues that the children were "homeless" when they were placed in the custody of DSS. Respondent Pine Bush also asserts that petitioner has failed to produce any evidence that the children's living arrangement with their grandparents was a "family home at board" or foster home within the meaning of the statute.

According to the record, respondent Peekskill enrolled the children from September 1988 to December 18, 1988 based upon a representation by their mother that they would be living in the district with their father. Apparently, the children only attended the Peekskill schools sporadically and when they did appear, they came to school improperly dressed and unkempt. Prompted by concerns for the children's health and welfare, the Peekskill district launched an investigation and found the children living with their mother and stepfather in a truck located in a park outside the district. According to respondent Peekskill, the children's father was not a resident of the district while the children attended school there, despite their mother's representation to the contrary. In any case, the children did not return to school in Peekskill after December 12 and were dropped from its attendance rolls on December 19 following respondent Peekskill's determination that neither the children nor their father resided there.

Respondent Peekskill asserts that since the children were never residents of that district, the district is not liable for the children's tuition. Respondent Peekskill also asserts that the appeal is untimely since it was filed more than thirty days after the district declined petitioner's request for tuition and, in any case, that Peekskill should not be liable for the children's education since Pine Bush paid the 1989-90 tuition. Moreover, respondent Peekskill argues that since the children are now living with their grandparents, the Commissioner should find them to be legal residents of the Haldane Central School District for purposes of this appeal.

Education Law '3202(4) provides, in pertinent part:

Residence is acquired by one's physical presence as an inhabitant of the district combined with an intent to remain (Appeal of Reifler, 31 Ed Dept Rep 235). Based on the record before me, I am unable to find that the children resided in either the Peekskill City School District or the Pine Bush Central School District prior to their placement in foster care. Although the Peekskill City School District enrolled the children in September 1988, the board asserts that it did so based on the false representation by their mother that the children would be living with their father in the district. According to respondent Peekskill, its investigation revealed that the children lived with their mother and stepfather in a truck at a campground outside the district, and that the biological father had not even been a resident of the district when the children enrolled there. Regarding any liability on the part of respondent Pine Bush, the record merely establishes that the children, along with their mother and stepfather, spent a very brief period of time living in a truck parked in a campground located within that district. However, there is no indication whatsoever that the family intended to establish a residence at the campground or had otherwise established residence within the Pine Bush district. Instead, the facts presented suggest that the family lacked a permanent fixed address when DSS found the children at the campgrounds and placed them in foster care.

Since a residence is not lost until another residence is established through both intent and action expressing such intent (Matter of Tynan, 28 Ed Dept Rep 4; Matter of Woodard, 27 Ed Dept Rep 442; Matter of Richards, 25 Ed Dept Rep 38) to establish the district responsible for the children's tuition, petitioner needs to establish, with the assistance of DSS, the children's last permanent residence before they were found at the campground. Because the record fails to present any facts that establish the children's last permanent residence in either Peekskill or Pine Bush, the appeal must be dismissed.

Notwithstanding the fact that I am unable to determine the district responsible for tuition pursuant to Education Law '3202(4), petitioner continues to be responsible for the education of the child remaining in the district as long as she remains in foster care in a family home at board (See Jeter v. Ellenville Central School District, 41 NY2d 283; Matter of Little Flower Children's Services, 20 Ed Dept Rep 114).

THE APPEALS ARE DISMISSED.

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