Appeal of FATHER CONSTANTINE L. SITARAS and SAINT BASIL ACADEMY, on behalf of E.M., from action of the Board of Education of the Garrison Union Free School District regarding residency.

Appeal of FATHER CONSTANTINE L. SITARAS and SAINT BASIL ACADEMY, on behalf of S.M., from action of the Board of Education of the Garrison Union Free School District regarding residency.

Appeal of FATHER CONSTANTINE L. SITARAS and SAINT BASIL ACADEMY, on behalf of A.P., et al., from action of the Board of Education of the Garrison Union Free School District regarding residency.

Decision No. 15,044

(April 6, 2004)

Michael K. Lambert, Esq., attorney for petitioners

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, John Donoghue and Daniel Petigrow, Esqs., of counsel

MILLS, Commissioner.--Petitioner Sitaras is the Executive Director of Saint Basil Academy (“St. Basil”), which is affiliated with the Greek Orthodox Church and operates a residential facility for children whose parents are not able to care for them. In three separate appeals, Sitaras and St. Basil (collectively “petitioners”) challenge separate determinations of the Board of Education of the Garrison Union Free School District (“respondent”) that 26 children who live at St. Basil are not district residents. Because the appeals involve common issues of law and fact, they are consolidated for decision. The appeals must be sustained in part.

St. Basil is located within respondent’s school district. Respondent operates a school for grades K-8 and pays tuition to send its residents to high school in neighboring school districts. Prior to the 2002-2003 school year, St. Basil paid non-resident tuition for the 26 children to attend school in neighboring districts, primarily the Highland Falls Central School District (“Highland Falls”), which is located across the Hudson River from St. Basil.

All the children at issue share the unfortunate circumstance of lacking a parent or guardian able or willing to care for them. E.M. and S.M., who are siblings, were “paroled to” St. Basil in November 2000 by order of the Family Court, New York County, as a result of a neglect proceeding commenced against their parents by the Administration for Children’s Services in New York City (“ACS-NY”). They are the only children at issue in these appeals who have been placed at St. Basil through a formal court order resulting from the intervention of a local social services agency. The remaining children, several of whom are students with disabilities, were placed at St. Basil privately. A number of these children do not have a parent or guardian living in New York State.

 

Appeals on behalf of S.M. and E.M.

By separate letters dated August 28, 2002, petitioners sought to enroll E.M. and S.M. in respondent’s school district. By letter dated September 18, 2002, respondent’s superintendent informed petitioners that the district had appointed a hearing officer to conduct a residency hearing pursuant to §100.2(y) of the Commissioner’s regulations to determine the children’s status. At the September 30, 2002 hearing, petitioners’ counsel established, among other things, that the children were “paroled to” St. Basil on November 1, 2000 by order of the Family Court, New York County, as a result of a neglect proceeding commenced against their parents by ACS-NY. He also demonstrated that the Court subsequently found that the children were neglected and has continued their placement at St. Basil through a series of temporary court orders.

By separate decisions dated October 1, 2002, the hearing officer found that S.M. and E.M. are not residents of respondent’s district because ACS-NY is their guardian and has not relinquished permanent custody and control to St. Basil. The hearing officer further found that the children’s placement at St. Basil constitutes a “free family home” pursuant to Education Law §3202(4)(b) and that the children are permanent residents of New York City, and therefore, “not entitled to a tuition-free education in the Garrison Union Free School District.” Petitioners commenced separate appeals on behalf of E.M. and S.M. on October 10, 2002. On August 26, 2003, I granted petitioners’ request for interim relief in both appeals.

Petitioners contend that the hearing officer’s determination is arbitrary and capricious and that the hearing officer improperly considered evidence outside the record. Petitioners request that I find that the children are district residents and order respondent to reimburse petitioners for the tuition paid for the 2002-2003 school year. Respondent contends that Highland Falls is a necessary party to these appeals, and that the hearing officer’s determination is proper.

 

Appeal on behalf of A.P., et al.

On or about September 17, 2002, petitioners applied to enroll A.P. and 23 other children residing at St. Basil in respondent’s school for the 2002-2003 school year. On or about October 10, 2002, respondent notified petitioners that it would hold a residency hearing for all the children on October 16, 2002. The hearing was postponed at petitioners’ request until November 25, 2002. By separate decisions dated November 26 and 27, 2002, respondent’s hearing officer determined that the 24 students are not district residents. Petitioners then commenced an appeal on behalf of the 24 children. On August 26, 2003, I granted petitioners’ request for interim relief.

Petitioners contend that St. Basil has supported each of the 24 children and has been responsible for all educational, medical and related decisions for them since their arrival at St. Basil. For all but two of the children, a parent, guardian or other relative signed a “Consent for Boarding Care Release and Waiver of Liability” (“consent form”) granting St. Basil authority to assume physical custody and care of the child. Petitioners also contend that the children have minimal, infrequent contact with their parent(s) and that the parents do not provide financial support. Thus, petitioners maintain that the children are district residents and seek an order to that effect. Petitioners also request an order directing respondent to reimburse St. Basil for the non-resident tuition it paid for the 2002-2003 school year.

Respondent contends that the students are not district residents because their parents or guardians reside outside the district and there has been no complete or permanent transfer of custody to petitioners. Respondent argues that its hearing officer’s decisions were reasonable and that the residency hearing was properly conducted. Respondent further contends that the appeal should be dismissed because the required notice of petition did not accompany the petition when it was initially served upon respondent and subsequent service was untimely.

Initially, I must address a number of procedural issues. By letters dated September 16 and October 23, 2003, respondent requested permission to submit two supplemental affidavits in the Appeal on behalf of A.P., et al. pursuant to §276.5 of the Commissioner’s regulations on the grounds that the evidence was not available at the time respondent filed its answer. Petitioners object to respondent’s September 16 submission by letter dated October 3, 2003 submit an affidavit in response. Additionally, by letter dated November 11, 2003, petitioners requested permission to file an affidavit in response to respondent’s October 23, 2003 submission.

I have reviewed respondent’s September 16, 2003 submission and find that much of the material is improper because it either was available to respondent when it submitted its answer, or may not be considered as evidence in an appeal pursuant to Education Law §310 (see, Appeal of Mead, 42 Ed Dept Rep 359, Decision No. 14,881). Accordingly, I have accepted respondent’s September 16, 2003 submission only to the extent that it provides updated information regarding the status of children. I have similarly considered petitioner’s October 3, 2003 affidavit only to the extent that it contains new information previously unavailable. I have, however, accepted the parties’ October 23 and November 11, 2003 submissions because, for the most part, these papers contain updated information related to either the children’s residency status or the substance of the parties’ claims.

By affidavit dated October 3, 2003, petitioner Sitaras informed me that three children named in the Appeal on behalf of A.P., et al., I.K., Anna P. and K.P., no longer reside at St. Basil. In addition, by affidavit dated November 10, 2003, petitioner Sitaras informed me that a fourth student has graduated high school. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Kennedy, 42 Ed Dept Rep 410, Decision No. 14,896; Appeal of R.C., 42 id. 106, Decision No. 14,789). Accordingly, the appeal is moot and must be dismissed with respect to these four children.

Respondent maintains that the Appeal on behalf of A.P., et al., is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of Malek, 41 Ed Dept Rep 312, Decision No. 14,697; Appeal of Marbury, 41 id. 119, Decision No. 14,634; Appeal of Lucente, 39 id. 244, Decision No. 14,227). The residency determinations were dated November 26 and 27, 2002, and petitioners contend that their counsel received the decisions on December 3, 2002. The petition, without the notice of petition required by §275.11 of the Commissioner’s regulations, was served on respondent on January 2, 2003. Petitioners claim the notice of petition was inadvertently omitted from the voluminous record. When they became aware of the omission, petitioners served a notice of petition on respondent’s superintendent on January 15, 2003. Because petitioners’ attorney timely served the petition, albeit without notice, and promptly corrected the error, I will exercise my discretion and excuse the untimely commencement of this appeal (see, Appeal of Mitchell, et al., 40 Ed Dept Rep 88, Decision No. 14,428).

Generally, the Commissioner of Education lacks authority to award money damages (Appeal of Moore, 41 Ed Dept Rep 436, Decision No. 14,738; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613; Appeal of Kozak and Hetey, 40 id. 195, Decision No. 14,459). Accordingly, in the context of a residency appeal, the Commissioner of Education has historically declined to award a school district tuition for educating a non-resident student or to order a district to reimburse a petitioner for tuition paid on behalf of a resident student who was entitled to attend district schools (see, Appeal of Baronti, 42 Ed Dept Rep 140, Decision No. 14,802; Appeal of a Student with a Disability, supra; Appeal of Zavesky, 40 id. 517, Decision No. 14,543; Appeal of Smith, 40 id. 126, Decision No. 14,438). Accordingly, the appeals must be dismissed to the extent that petitioners seek actual reimbursement for tuition paid. Further, because I am dismissing those claims, I find no merit to respondent’s claim in the appeals on behalf of S.M. and E.M. that Highland Falls, which received tuition payments from petitioners, is a necessary party.

Before addressing the merits, I must make reference to a significant issue: the licensure status of St. Basil. After these appeals were commenced, the New York State Education Department and the New York State Office of Children and Family Services (“OCFS”) discovered that St. Basil was not licensed by OCFS -- or any other State agency -- to legally operate a residential facility for children. As a result of OCFS’s intervention, St. Basil applied to OCFS for licensure. By decision dated January 2, 2004, OCFS denied St. Basil’s application and ordered the facility to close by January 31, 2004.

By letter dated January 15, 2004 to OCFS’s Bureau of Special Hearings, St. Basil’s counsel requested a hearing on the denial of its application. Counsel also requested that OCFS permit St. Basil to continue operating during the pendency of its appeal. By letter dated January 26, 2004, Charles Carson, Assistant Deputy Counsel at OCFS, advised St. Basil that OCFS would permit the children to remain at the facility pending the administrative appeal. Litigation challenging OCFS’s determinations is pending and it is apparent that it may not conclude for some time. St. Basil’s uncertain licensure status is important because, as discussed below, it bears upon the question of who is responsible for educating the children of St. Basil.[1]

Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

This provision generally establishes a child’s right to a free education in the district where he or she resides. However, the Education Law also includes a number of special provisions that address, among other things, the educational rights of children who are in a variety of institutional settings, or have been placed in a residential setting by a social services district, State agency or family court. In these special cases, the child’s right to an education and financial responsibility therefor are statutorily defined. Further, because a general provision applies only where a particular provision does not (People v. Mobil Oil Corp., 48 NY2d 192), these special provisions prevail over the general language of Education Law §3202(1)(see, McKinney’s Statutes §238). Accordingly, because the children at issue reside in an institution, their right, if any, to a free education and financial responsibility therefor must be determined by reference to the applicable special statutory provision governing St. Basil.

Contrary to respondent’s contention, Education Law §3202(4), which addresses the education rights of children in “family homes at board” and “free family homes”, is inapplicable here. This provision applies only to homes that provide a family-type setting, and excludes institutions such as St. Basil (see, McMahon v. Amityville Union Free School Dist., 48 AD2d 106, app. den. 37 NY2d 708; Matter of Sister Mary Olivia, 12 Ed Dept Rep 213, Decision No. 8614).

Nor are the children covered by Article 81 of the Education Law, which addresses the educational rights of children in child care institutions. A “child care institution,” is defined, in pertinent part, as “any facility serving thirteen or more children licensed by [OCFS] pursuant to title one of article seven of the social services law operated by an authorized agency” (emphasis supplied) (Education Law §4001[2]). Although OCFS is permitting St. Basil to operate during the pendency of its appeal, St. Basil is not licensed by OCFS and therefore, does not meet this definition. Accordingly, Article 81 does not govern here.

Because neither of these provisions apply, I find that the children’s rights are controlled, in effect by default, by Education Law §3202(6), which provides:

Except as provided in subdivision five of this section or by article eighty-one of this chapter, children cared for in a hospital or other institution for the care, custody and treatment of children, other than a school and excepting children of the officers and employees of such hospital or institution, shall not, by reason of their presence in such hospital or institution, be deemed to be residents of the school district in which such hospital or institution is located. The trustees or board of education of the school district of their residence shall provide educational services for such children. Such services may be provided by a tutor employed by the district, by contract with a school connected with such hospital or institution, or by contract with the local public school district in which such hospital or institution is located . . . Provided, however, if such children are supported and maintained at the expense of a social services district the cost of said instruction shall be paid by the social services district which is liable for payment of the cost of their support and maintenance. In the case of hospitals and or institutions located in the state of New York, the trustees or board of education of a school district in which such a hospital or institution is located shall receive such children in the school or schools of the district for instruction for a compensation to be fixed by the trustee or board of education, unless such trustee or board of education shall establish to the satisfaction of the commissioner of education that there are valid and sufficient reasons for refusal to receive such children. (emphasis added.)

While this provision is not a perfect fit for St. Basil’s situation, it appears from the legislative history that this provision, enacted in 1981, was designed to fill a perceived gap in the legislative scheme with respect to children in certain institutional settings not covered by Article 81 or any other special provision. Based on the statutory language and legislative history, and absent any other specifically applicable statute, I find that St. Basil qualifies as an “institution for the care, custody and treatment of children” within the meaning of Education Law §3202(6) and that, therefore, the educational rights of the children must be determined by reference thereto.

Education Law §3202(6) places responsibility for the education of children at an institution on the board of education of the school district of their residence.[2] If the institution is not connected with a school, the child’s school district can provide educational services by tutor or by contract with the local school district where the institution is located. Where, as in this case, the institution is located in New York State, the board of education for the school district in which the institution is located must educate the children “for a compensation to be fixed by . . . the board of education,” unless it can establish to the Commissioner of Education’s satisfaction that there are “valid and sufficient reasons for refusal to receive such children.” Where the children are supported and maintained at the expense of a local social services district, the local social services district is responsible for the cost of instruction.

Applying this statutory framework to the circumstances present here, I find that the board of education of the school district of each child’s residence is responsible for his or her education. Further, because St. Basil is located in New York State, respondent is obligated to accept the children on a tuition basis.[3]

Although the statute provides that a child shall not, merely by virtue of his or her presence in the institution, be deemed a resident of the school district where the institution is located, this language does not preclude petitioners from establishing that the children’s legal residence is at St. Basil, and that therefore, they are entitled to attend respondent’s schools tuition free. Based on the record, however, I find that petitioners have not established residence at St. Basil.

Petitioners contend that custody and control of the children has been permanently transferred to St. Basil and that therefore, St. Basil is the children’s actual residence. In determining “residence” within the meaning of Education Law §3202(6), the presumption applies that the child’s residence is with that of his or her parents (see, Catlin v. Sobol, 77 NY2d 552). This presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing in the district (Appeal of Y.R., 42 Ed Dept Rep 376, Decision No. 14,886; Appeal of Maxwell, 42 id. 134, Decision No. 14,799). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Hardick, 41 Ed Dept Rep 300, Decision No. 14,693; Appeal of Burdi, 39 id. 176, Decision No. 14,206).

Based on the record before me, I find insufficient evidence to establish that any of the children’s parents have relinquished permanent custody and control to St. Basil. In the Appeal of behalf of A.P, et al., petitioners rely primarily on the signed consent forms authorizing St. Basil to assume custody of the children to support their contention that the children are district residents. A statement purporting to transfer custody is not, by itself, determinative (Appeal of Simond, 36 Ed Dept Rep 117, Decision No. 13,675; Appeal of Fichtner, 22 id. 119, Decision No. 10,900). In this case, I find the consent forms insufficient to establish that custody and control has been permanently transferred to St. Basil for a number of reasons. First, the form language does not clearly provide for a permanent transfer of custody. Rather, the form authorizes St. Basil to assume custody of the child, along with all the rights and responsibilities consistent with an award of sole legal custody by a court of law, but specifies that consent can be revoked on 30 days notice. The fact that the form explicitly recognizes the right of the signer to revoke consent at any time precludes petitioners from arguing that the transfer of custody is permanent (Horowitz v. Bd. of Educ. of the City of Yonkers, 217 AD 233; Appeal of Peykar, 38 Ed Dept Rep 141, Decision No. 14,003). Second, because each form contains identical language and simply requires the parent or guardian to supply the child’s name and an unsworn signature, I find it has little probative weight in determining the actual intent of the parent or guardians with respect to the purported transfer. Further, in several instances the form is signed by someone other than the parent, and there is insufficient proof establishing that the signer has authority to transfer custody of the child to St. Basil.

Nor is petitioners’ remaining proof sufficient to establish that custody of any of the children has been permanently transferred to St. Basil. The fact that respondent and Highland Falls addressed notices and letters concerning the children to St. Basil and referred to the institution as the child’s “guardian” has no probative value in determining whether the children’s parents have permanently surrendered custody to St. Basil. Further, the record reflects that many of the children continue to have regular contact with at least one parent and a number of children are covered by a parent’s health insurance plan. Although these facts alone are not necessarily inconsistent with a permanent custody transfer, I find them significant in this case, given petitioners’ failure to supply any affidavits from the children’s parents or guardians.

Further, petitioners’ claim that custody of the children has been permanently transferred to St. Basil is also belied by the fact that, during the pendency of this appeal, three of the children were reunited with a parent and are no longer residing at St. Basil.

In sum, petitioners have failed to rebut the presumption that the children’s residency is with that of their parents or legal guardians. Further, because there is no evidence that any of the children’s parents or guardians reside in respondent’s district, I find that petitioners have failed to establish that any of the children in Appeal of A.P. , et al. are district residents.

Nor do I find sufficient evidence establishing S.M and E.M. are district residents. The children were initially placed at St. Basil pursuant to a temporary order issued by family court and have remained there pursuant to a series of temporary orders extending their placement. The temporary nature of these orders precludes any finding that custody of the children has been permanently transferred to St. Basil (see, Matter of Nicole JJ., 265 AD2d 29).

The fact that the children are not district residents does not, however, mean that respondent is free of any obligation to educate them. To the contrary, Education Law §3202(6) requires respondent to admit the children to the district’s schools on a tuition basis. Further, it appears that a number of the children may, in fact, have a parent residing in New York State. In these cases, the children have a right to attend respondent’s schools at the expense of the school district of his or her residence. In the case of S.M. and E.M, ACS-NY would be responsible for tuition if, in fact, they are responsible for the maintenance and support of these children. Because the statute does not assign fiscal responsibility for the education of children who are not New York State residents, respondent is only obligated to educate such children if St. Basil or some other entity or individual assumes responsibility for tuition.[4]

Because neither party apparently contemplated that Education Law §3202(6) applies to the circumstances present here, it appears that no attempt has been made to identify and contact any of the children’s school districts of residence to arrange for the payment of tuition. Further, I recognize that it may take time for the parties to make such arrangements. Accordingly, in the interim, I find that it is in the best educational interests of the 22 remaining children, to stay in their current school placements for the remainder of the 2003-2004 school year without the payment of tuition, and I direct respondent to permit them to do so (see, Appeal of Diaz, 33 Ed Dept Rep 38, Decision No. 12,967; Appeal of Forde, 29 id. 359, Decision No. 12,319).

In light of this disposition, I need not address the parties’ remaining contentions.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent permit the 22 children at issue to continue in their current school placements, without the payment of tuition, for the remainder of the 2003-2004 school year; and

IT IS FURTHER ORDERED that within 30 days of the date of this decision, petitioners submit to respondent any and all information concerning each child’s district of residence or social services district responsible for their maintenance and support; and

IT IS FURTHER ORDERED that upon receipt of such information, respondent contact each such school district of residence or local social services district and make arrangements for the payment of tuition and continuing education for the children in question.

IT IS FURTHER ORDERED that, with respect to those children for whom a district of residence or social services district is not identified and determined, and as long as Education Law §3602(6) continues to apply, respondent shall have no further obligation to admit the children without the payment of tuition after the conclusion of the 2003-2004 school year, except as may be required under applicable provisions of the Individuals with Disabilities Education Act. Nothing in this decision should be construed as precluding respondent from seeking reimbursement in a court of competent jurisdiction from any responsible party for expenses incurred in educating the children at St. Basil during the 2003-2004 school year.

END OF FILE

[1] The parties have apprised me of the licensing proceedings through a number of submissions, specifically, a January 5, 2004 letter from respondent with attachments and a January 12, 2004 letter from petitioners in response thereto; a January 28, 2004 letter with attachments from petitioner and a January 29, 2004 letter and supplemental affidavit with exhibits from respondent, both in response to a request from my Office of Counsel for additional information. I have accepted these submissions only to the extent that they contain new information not available when the appeals were instituted. Additionally, I have not considered the content of a newspaper article submitted by respondent as part of its January 29, 2004 submission since it is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Liberatore, 42 Ed Dept Rep 321, Decision No. 14,869; Application of Wilson, 41 id. 196, Decision No. 14,663).

 

 

[2] This statutory assignment of fiscal responsibility to the school district of residence is implicitly limited to those children who reside in New York State.

 

 

[3] I recognize that the statute provides an exception to this mandate where the school district demonstrates that it has “valid and sufficient reasons” to refuse to receive the children (Education Law §3202[6]). However, respondent has not made such a showing and unless and until it does so, it is obligated to educate the children on a tuition basis.

 

[4] In the event that St. Basil is granted a license to operate a child care institution, fiscal responsibility for the children’s education may change.