Appeal of G.D. and T.D., on behalf of their nephew M.B., from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 15,298

(August 26, 2005)

Donoghue, Thomas, Auslander & Drohan LLP, attorneys for respondent, Krystina E. Cho, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioners appeal the determinations made by the Board of Education of the Pine Bush Central School District ("respondent") on April 6 and April 13, 2005 that their nephew, M.B., is neither a district resident nor entitled to attend the district's schools as a homeless unaccompanied youth. Because the underlying facts and relief sought in the two appeals are essentially the same, they are consolidated for decision. The appeals must be dismissed.

It is undisputed that petitioners reside within respondent's district and that M.B.'s parents reside outside the district, in New Jersey. On April 5, 2005, respondent's designee conducted a residency hearing to determine whether M.B. was a district resident. Only G.D. attended the hearing. However, M.B.'s parents submitted a sworn joint parental affidavit, dated April 4, 2005, stating that M.B. was not living with them because "negative influences" necessitated a change in his environment for his well being. The affidavit asserted that M.B.'s parents had transferred custody and legal guardianship of him to petitioners, that they were authorized to act on M.B.'s behalf in all respects, and that M.B. would reside with petitioners until his education was complete. The affidavit also stated M.B.'s parents would provide him with food, clothing and other necessities, or money toward those items, and would continue to provide medical insurance for him.

G.D. also submitted a sworn affidavit, dated April 5, 2005, in which she stated that M.B. would permanently reside with her and her husband. The affidavit asserted that M.B. visited with them during the summer and wanted to stay, and that she thought it was in M.B.'s best interest for him to reside with them. The affidavit maintained that M.B.'s parents would provide money for anything he might need but if they were unable to do so, petitioners would provide for him. Finally, the affidavit asserted that petitioners would assume all responsibility for M.B.'s education and medical care.

According to respondent's appeal papers, during the hearing, G.D. stated that M.B. would reside with her and her husband until he finished his education, and that M.B. was not living with his parents because he wanted to live with them. She asserted that both she and M.B.'s parents have sufficient permanent housing to care for him, that M.B. and his parents would visit each other, that M.B.'s parents would continue to have access to his educational records, and that M.B.'s parents would provide financial resources to meet his needs and fund his college education.

By letter dated April 6, 2005, respondent's designee notified M.B.'s parents that he was not a district resident and therefore, not entitled to attend respondent's schools because they had not made a total and permanent transfer of custody and control of M.B. to petitioners.

On April 12, 2005, petitioners contacted the district claiming that since M.B. is not living with his parents, he is a homeless unaccompanied youth within the meaning of the McKinney-Vento Homeless Assistance Act ("McKinney-Vento", 42 USC �11431 et seq.) and, therefore, entitled to attend respondent's schools. M.B. was immediately admitted to respondent's schools. By letter dated April 13, 2005, respondent's Director of Human Resources advised petitioners that, based on the evidence from the April 5, 2005 residency hearing, a determination had been made that M.B. was not a homeless unaccompanied youth. The Director specifically found, interalia, that M.B. did not fit the definition of a homeless unaccompanied youth because he had a fixed, regular and adequate night-time residence and the option of living with either petitioners or his parents.

Petitioners then commenced two separate appeals, one challenging the April 6, 2005 residency determination and the other challenging the April 13, 2005 determination that M.B. is not a homeless unaccompanied youth. Petitioners' request for interim relief was granted on May 18, 2005.

Petitioners contend that M.B. is entitled to attend respondent's schools because his parents made a total and permanent transfer of custody and control to them. Petitioners further allege that M.B. is entitled to attend respondent's schools because he is a homeless unaccompanied youth. Petitioners allege that M.B. is not living with his parents because he has had ongoing difficulties with them. Petitioners claim that M.B. lacks attention from his parents because they are overwhelmed with the care of his medically challenged younger siblings. Petitioners further assert that they provide M.B. with food, clothing and shelter and that M.B. has not had contact with, or financial support from, his parents since he left home on March 23, 2005.

To substantiate her claims, petitioners submitted a sworn joint parental affidavit, dated April 2, 2005, from M.B.'s parents stating that M.B. is presently residing with petitioners and that they have given physical custody and legal guardianship of him to petitioners. The affidavit authorizes petitioners to enroll M.B. in respondent's schools and to act on his behalf in all respects.

Respondent maintains that M.B. is not entitled to attend its schools because the purported transfer of M.B.'s custody and control to petitioners is not total or permanent. Respondent also asserts he is not entitled to attend its school as a homeless unaccompanied youth.

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

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930; Appeal of L.P., 43 id. 12, Decision No. 14,901). 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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L.H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Nelson, 44 id. 20, Decision No. 15,082). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

Moreover, where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917).

I agree that the purported transfer of M.B.'s custody and control to petitioners is not total or permanent. In her affidavit, G.D. stated that M.B.'s parents would provide money for his necessities. Additionally, according to respondent's appeal papers, at the residency hearing, G.D. stated that M.B.'s parents would continue to have access to his educational records and that they would provide financial resources to meet his needs and fund his college education. M.B.'s parents' April 4, 2005 affidavit also stated that M.B. would only reside with petitioners until the completion of his education, and that they would provide financial resources for his necessities and maintain medical insurance for him.

Petitioners' claims in these appeals that M.B. has not had contact with or financial support from his parents since he left home on March 23, 2005, do not persuade me that M.B.'s parents have made a total and permanent transfer of custody and control, since the petitions were drafted after respondent's April 6 and April 13 determinations.

Since petitioners have not established that there has been a total and permanent transfer of custody and control, I find that respondent's April 6 residency determination is neither arbitrary, capricious nor unreasonable.

I also find no merit to petitioners' contention that M.B. is a homeless unaccompanied youth. Education Law �3209(1)(a) defines a homeless child as:

(1)  a child or youth who lacks a fixed, regular, and adequate night-time residence, including a child or youth who is:

(i)  sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii)abandoned in hospitals;

(iv) awaiting foster care placement;

             or

(v)  a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or

(2)  a child or youth who has a primary night-time location that is:

(i) a supervised publicly or privately operated shelter designed to provide temporary living accommodations...; or

(ii) a public or private place not designed for, or ordinarily used as, a regular sleeping accom-modation for human beings. . . .

Section 100.2(x) of the Commissioner's regulations also contains this definition.  Both the Education Law and Commissioner's regulations conform to the definition of "homeless children and youths" in McKinney-Vento. 

In addition, �100.2(x)(1)(vi) of the Commissioner's regulations defines an unaccompanied youth as a homeless child for whom no parent or person in parental relation is available. This section conforms to the definition of "unaccompanied youth" in McKinney-Vento.

Petitioners' nephew does not fit the definition of a homeless unaccompanied youth under State or federal law. He has a fixed, regular night-time residence and there is no evidence on the record that such residence is inadequate.  There is also nothing in the record that indicates that M.B. was forced to leave his parents' home and that he could not return to it if he so chooses.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Petitioners' statements undermine their claim that M.B. is a homeless unaccompanied youth and have not established that M.B. is sharing the housing of other persons due to loss of housing, economic hardship or similar reason rather than his preference to reside with petitioners instead of his parents. Accordingly, I find no basis on which to substitute my judgment for that of respondent.

THE APPEALS ARE DISMISSED.

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