Appeal of A STUDENT WITH A DISABILITY, by her godmother, from an action of the Board of Education of the Bayport-Blue Point Union Free School District regarding residency.

Decision No. 15,652

(August 31, 2007)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Bayport-Blue Point Union Free School District (“respondent”) that her goddaughter, a student with disability, is not a district resident entitled to attend school in the district tuition-free.  The appeal must be sustained.

Petitioner is a resident of respondent’s school district who holds herself out to be the student’s godmother.  On July 28, 2005, Suffolk County Family Court issued a temporary order directing the removal of the student from the custody of her biological mother and father and the temporary placement of the student with petitioner.  On August 29, 2005, petitioner enrolled the student in the district’s schools, and the district developed an Individual Education Plan (IEP) for the student.

On December 20, 2005, Suffolk County Family Court found child neglect against the student’s mother and granted permanent custody to her father.  As a result, the student left the district’s school in January 2006 and entered the Patchogue-Medford Union Free School District (“Patchogue-Medford”).

In October 2006, the student left her father’s residence and resumed living with petitioner in the district.  In November 2006, petitioner contacted the district to enroll the student in the district’s schools.  At this time, the district informed petitioner that certain affidavits were required to be completed by her and the student’s father as a prerequisite to such enrollment. Petitioner and the student’s father submitted the required affidavits dated November 18, 2006.  Petitioner simultaneously submitted the student’s medical records, educational records from Patchogue-Medford High School and proof of her own residency in the district.  Petitioner completed the student’s registration materials and in doing so, listed the student’s father as an emergency contact.

On November 20, 2006, the student’s father signed the student out of Patchogue-Medford High School.  On November 28, 2006, the district contacted the student’s father by telephone seeking additional information regarding his relationship with his daughter.  During this telephone conversation, the father informed the district that “he still kept in touch with his daughter” and that “his daughter intended to reside with petitioner until graduation.”

The district scheduled a follow-up meeting with the student’s father for December 6, 2006.  The father was unable to attend and the meeting was cancelled.  The district attempted to reschedule the meeting, but the student’s father was unresponsive.  Moreover, the father failed to provide the district with any other or further information regarding the student’s residency with petitioner.

Petitioner claims that she made multiple inquiries to the district regarding the student’s enrollment status, but the district failed to respond to her inquiries. Neither petitioner nor the student’s father received a determination from the district regarding the student’s enrollment.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 16, 2007.

Petitioner contends that the student resides with her in the district and that she fully cares for the student by providing shelter, food and clothing, without financial assistance from the student’s father.  Petitioner seeks a determination that the student is a district resident entitled to attend the district’s schools tuition-free, with compensatory education for time missed.

In its answer, respondent contends that the student is not a district resident entitled to attend the district’s schools.  It argues that the student’s father retains custody and control and that the student does not intend to permanently reside with petitioner in the district, but merely wishes to live with petitioner to establish district residency for school purposes. Respondent also contends that given petitioner’s non-custodial status, she does not have standing to apply for the student’s enrollment in the district’s schools, and moreover, does not have standing to bring this appeal. Respondent requests that the appeal be dismissed for failure to exhaust administrative remedies.

First, I find that petitioner has standing to bring this appeal.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316). In this case, petitioner is a resident of respondent’s school district and alleges that the student resides with her.  A child residing in petitioner’s household for whom the presumption of parental residence has been rebutted may attend respondent’s schools tuition-free.  Therefore, petitioner may request that the student be enrolled in respondent’s district and has standing to challenge respondent’s actions (Appeal of Riccinto, 46 Ed Dept Rep 39, Decision No. 15,435; Appeal of E.J., 46 id. 36, Decision No. 15,434).

Second, I will not dismiss the appeal for failure to exhaust administrative remedies.  The regulations of the Commissioner of Education provide:

The board of education or its designeeshall determine whether a child is entitled to attend the schools of the district.  Any decision by a school official, other than the board or its designee, that a child is not entitled to attend the schools of the district shall include notification of the procedures to obtain review of the decision within the school district (8 NYCRR §100.2[y], emphasis added).

Here, the district failed to make a determination regarding the student’s residency and enrollment status, constituting a determination denying the student enrollment in the district’s schools based on residency. The district did not render a decision in this matter and did not notify petitioner in writing of its decision.  Nor did the district notify petitioner of the procedures to obtain review of its decision within the district.  Therefore, I find that petitioner did not omnisciently fail to exhaust administrative remedies, but was denied the opportunity to engage in such remedial actions.  Therefore, I find no procedural grounds to dismiss this appeal.

As to the merits, the district contends that the student’s father retains custody and control of his daughter.  To the contrary, I find sufficient evidence in the record to find that the student is a district resident entitled to attend the district’s school.

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.

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 Innocent, 44 Ed Dept Rep 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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 Nelson, 44 Ed Dept Rep 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).

A parent’s continued financial support of the student or continued control over important decisions affecting the student, are not, however, the only relevant considerations in determining the student’s residency.  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).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Hardick, 41 Ed Dept Rep 300, Decision No. 14,693) or the hardships of single parenting (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).

The student’s father submitted an affidavit to the district indicating he relinquished custody and control of his daughter to petitioner.  Petitioner simultaneously submitted an affidavit to the district indicating she was fully responsible for the care and custody of the student.  Respondent argues that the father’s action of signing his daughter out of Patchogue-Medford High School on November 20, 2007 demonstrates his continued custody and control of his daughter.  To the contrary, I find this action, which occurred almost simultaneously with his submission of the affidavit to the district, demonstrates his intent to transfer full custody and control of the student to petitioner.

The father’s failure to respond to the district’s inquiries regarding his daughter’s residency further demonstrates his lack of interest in the legal matters of his daughter.  Petitioner’s request to have the father notified of an emergency affecting his daughter is not necessarily evidence that the father is making medical decisions for his daughter.  The mere fact that the father informed the district that he kept in touch with his daughter is not dispositive of his custody or control of his daughter.

Moreover, it is undisputed that the student resides with petitioner and has resided with petitioner since November 2006.  Student had resided with petitioner in the past for about a six-month period and attended the district’s schools during such time.  Student’s past and present residency with petitioner demonstrates her ongoing relationship with petitioner and her presumable intent to remain with petitioner in the district.  Moreover, the district admits petitioner may be best suited to care for the student.  Given this admission and petitioner’s claims of irreconcilable differences between the student and her father, I find that the student intends to permanently reside with petitioner.

Thus, I find that the student is a district resident entitled to attend the district’s schools tuition-free.  As a student with a disability, the student’s placement and educational program are dictated by her IEP.  Dissatisfaction with the services recommended should be appealed to an impartial hearing officer pursuant to Education Law §4404(1).

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow the student to attend school in the Bayport-Blue Union Free School District without the payment of tuition.

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