Appeal of L.H., D.S. and F.S. from action of the Board of Education of the Coxsackie-Athens Central School District regarding residency.

Decision No. 15,947

(July 24, 2009)

Sheila Hurley, Esq., attorney for petitioners

Tabner, Ryan and Keniry, LLP, attorneys for respondent, William F. Ryan, Jr., Esq., of counsel

Huxley, Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Coxsackie-Athens Central School District (“respondent”) that L.H. is neither a district resident nor entitled to attend the district’s schools as a homeless unaccompanied youth.  The appeal must be sustained in part.

Petitioner L.H. is an 18-year-old high school student whose parents and siblings reside in Ohio.  Petitioners D.S. and F.S. are a married couple who reside in respondent’s district.

The record indicates that in 2008, L.H. began corresponding with D.S. and F.S.’s teenage daughter.  On or about December 18, 2008, L.H. left his parents’ Ohio residence to live with D.S. and F.S. and their two children within respondent’s district.

In January 2009, L.H. enrolled in respondent’s high school as a homeless unaccompanied youth.  By letter dated January 8, 2009, respondent’s superintendent informed petitioners that L.H. was neither a resident nor a homeless student entitled to attend the district’s schools tuition-free.  The superintendent also requested specific documentation of L.H.’s residency.

In a January 19, 2009 letter, L.H.’s parents’ attorney informed the superintendent that L.H. would be living with D.S. and F.S. “indefinitely,” that this would be a “permanent” living arrangement, and that D.S. and F.S. would “pay for the costs associated with [L.H.’s] daily needs,” including transportation and entertainment, and would make educational decisions in consultation with L.H.  However, the letter also stated that L.H.’s health insurance would be provided by L.H.’s father as long as L.H. is a full-time student, and that L.H.’s parents would pay his medical expenses while he is living with D.S. and F.S.

By letter dated February 3, 2009, the superintendent informed petitioners of his “final determination” that L.H. was not a homeless student and would be excluded from respondent’s schools effective March 3, 2009.[1] The superintendent explained that petitioners could appeal this decision within 30 days and enclosed notice of petition and petition forms for such purpose.  In a separate letter also dated February 3, 2009, the superintendent advised petitioners that L.H. was not a district resident and that a residency hearing would be held on February 11, 2009.

A residency hearing was conducted by the superintendent on February 25, 2009.[2]  The record indicates that F.S. testified at the hearing and that petitioners produced a notarized “Temporary Guardianship Agreement” (“agreement”), signed by L.H.’s parents on February 18, 2009.  Pursuant to the agreement, effective December 2008, L.H.’s parents granted temporary custody of L.H. to D.S. and F.S. “for as long as necessary.”  The agreement also states that L.H.’s parents consent to medical treatment on his behalf “until such time as [the parents] can be contacted.”  The copy of the agreement submitted by petitioners includes a handwritten notation stating “acknowledged and accepted” followed by D.S. and F.S.’s signatures.  Respondent contends that D.S. and F.S. signed the agreement during a recess at the hearing.

By letter dated February 26, 2009, the superintendent notified petitioners that L.H. was not a district resident and would be excluded from respondent’s schools as of March 3, 2009.  This appeal ensued.  Petitioners’ request for interim relief was granted on April 2, 2009.

Petitioners contend that L.H. left his parents’ Ohio residence due to “the suicide attempt of his mother, the pending divorce of his parents, and the general domestic discord in the Ohio household.”  They maintain that L.H.’s parents have surrendered custody to D.S. and F.S., who exercise control over L.H.’s activities and behavior and provide him with financial support.  In the alternative, petitioners maintain that L.H. is a homeless unaccompanied youth.  Petitioners also object to the conduct of the residency hearing, including the superintendent’s role as the hearing officer, respondent’s alleged use of “unvalidated, handheld tape recorders during the hearing, which stopped midway,” and respondent’s failure to provide a hearing transcript.

Respondent argues that the appeal must be dismissed as untimely, for lack of standing and jurisdiction, and for failure to state a claim.  Respondent maintains that L.H. is neither a district resident nor a homeless student entitled to attend its schools tuition-free.

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; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).

Respondent argues that petitioners’ residency claim is untimely because it was commenced more than 30 days after its February 26, 2009 decision.  However, while the record indicates that respondent’s residency determination letter was dated February 26, 2009, it is unclear as to when petitioners actually received the notice.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be March 4, 2009.  Petitioners thus had to commence their appeal on or before April 3, 2009, which they did.  Consequently, I will not dismiss the appeal as untimely.

Respondent also contends that the appeal must be dismissed for lack of jurisdiction and standing. However, the burden is on respondent to establish its affirmative defenses (Appeal of Stanzione, 47 Ed Dept Rep 341, Decision No. 15,718; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Because respondent has not provided any evidence or arguments in support of these affirmative defenses, I will not dismiss the appeal on these grounds.

Turning to the merits, 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).

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 Jeudy, 46 Ed Dept Rep 512, Decision No. 15,579).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Moyer, 46 Ed Dept Rep 290, Decision No. 15,511; Appeal of Santana, 46 id. 255, Decision No. 15,499; Appeal of Werner, 45 id. 14, Decision No. 15,244).

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeal of Proctor, 46 id. 575, Decision No. 15,599).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293) 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 Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  In an appeal to the Commissioner, the 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; Appeals of Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

F.S. and D.S. have submitted affidavits in which they claim that they support L.H. and that his parents have effected a total and permanent transfer of custody.  Petitioners also submit a notarized statement from L.H.’s parents, dated March 24, 2009, in which they explain:

Due to personal family conflict and difficult relationships, living conditions for [L.H.] became stressful and depressing.  [L.H.], at age 18, established a permanent residence in ... New York with [D.S. and F.S.].  [L.H.] is no longer permitted to return to his prior home.  He has been living on his own without support of any kind from his parents.

. . .

The health insurance covering [L.H.] carried by [his father] through his employer has been cancelled.  [D.S. and F.S.] have assumed responsibility for [L.H.’s] care, his residence, his education and insurance.

The record also contains a March 17, 2009 affidavit from L.H. stating that he moved from Ohio because “life with my parents became impossible with so much family upheaval, depression and domestic discord.”  He asserts that he does not intend to return to Ohio and denies that he moved to New York to take advantage of respondent’s schools.  To support his residency claim, L.H. submits several documents listing D.S. and F.S.’s address as his residence, including a March 3, 2009 voter registration application, a New York State Learner’s Permit (issued on February 18, 2009), documents dated March 4, 2009 indicating that he opened an account at a local bank, a March 6, 2009 application for a New York State health insurance program and a library card.

Respondent maintains that such affidavits and other documents post-date its residency determination and are “merely an attempt” to establish custody and residency “solely ... to take advantage of district schools.  If [L.H.] truly intended to reside in the [d]istrict the transfer of custody and control to [D.S. and F.S.] should have been in place before [L.H.] arrived in [New York State].”  Relying on the decision in Appeal of Charles, 45 Ed Dept Rep 92, Decision No. 15,268 (“Charles”), respondent contends that petitioners’ evidence of transfer of custody and control should be rejected as a belated attempt to establish custody after respondent denied L.H. admission.

However, the Charles decision is distinguishable on its facts.  In Charles, the petitioner attempted to register her niece in the district’s schools in July because the student’s mother planned to return to Haiti in August.  The original registration documents submitted and the hearing testimony indicated that the student’s mother would provide food, clothing, all other necessities and 50% of her financial support; that full custody and control had not been transferred to petitioner; and that the family wanted the student “to continue to have a better education here.”   Based on this information, the district concluded that the student’s residence was with her mother in Haiti.  With the petition in her appeal to the Commissioner, however, petitioner submitted several new documents, including a new registration form, which indicated that she would provide all financial and other support.  I noted that nothing in the record indicated a change in circumstance from the time of the original submissions or the residency hearing.  I dismissed the appeal and found that petitioner’s later submissions “merely suggest a belated attempt to establish custody after respondent denied ... admission to its schools.”

In the instant appeal, the record indicates that L.H.’s move from Ohio was precipitated by a family crisis, rather than by a desire to attend respondent’s schools.  In his affidavit, L.H. states that his family situation “reached a crisis point” in December 2008 and he “could not focus on the normal things in life.  I felt I could no longer live with my biological parents, and I was very distraught.”  Indeed, in an affidavit, the superintendent admits that one of the “facts ... elicited” at the hearing was that “in December 2008, [L.H.] traveled by airplane to the Albany International Airport with $40.00 in his pocket and since his arrival has resided continuously with [D.S. and F.S.].”  Moreover, in this case petitioners asserted a transfer of custody and control prior to the residency determination.  The timing of events suggests not that petitioners are attempting to manufacture evidence of custody to take advantage of respondent’s schools, but rather that they have attempted to obtain further documentation to verify custody and residency after L.H.’s out-of-state move.

Respondent bases its determination in part on the January 19, 2009 letter from L.H.’s parents’ attorney, which states that L.H.’s parents would pay his medical expenses and continue to provide his health insurance and indicates that D.S. and F.S. “along with” L.H.’s parents would provide for his necessary expenses.

However, evidence that L.H.’s parents were paying for medical insurance is not, in and of itself, dispositive of L.H.’s residency (cf. Appeal of D.H.C., 43 Ed Dept Rep 468, Decision No. 15,053 [no showing of permanent transfer of custody and control where parent pays medical insurance and takes an active interest in decisions relating to health, education and welfare of child]).  Although the record indicates that L.H.’s father provided his medical insurance when he moved to New York State, there is also evidence that such coverage has since ceased and that L.H. has applied for coverage under a New York State program.  In addition, I find credible petitioners’ explanation that the parties intended that the insurance coverage provided by L.H.’s father would continue “until the New York coverage sought by [petitioners] was in place, because of the importance of continuity of coverage.  The coverage by [L.H.’s father] was a matter of expediency, and did not reflect [L.H.’s parents’] intent to cover [L.H.] for the rest of his student career.”

Moreover, the letter also indicates that D.S. and F.S. will claim L.H. as a dependent and pay for the costs associated with his daily needs, including transportation and entertainment expenses.  As a result, I find that the totality of the record supports petitioners’ assertion that they are supporting L.H.

Respondent also claims that L.H.’s living arrangement is temporary and asserts that, when asked at the hearing whether L.H. could return to his parents’ Ohio residence, F.S. was “evasive” and stated that “treating [L.H.] like a son you would hope that he would not unilaterally depart from the home.”  Respondent further cites the “Temporary Guardianship Agreement” and claims that L.H. continues to have contact with his parents and intends to live with D.S. and F.S. only until he is “fully emancipated and self-supporting.”  However, other than the “Temporary Guardianship Agreement,” respondent has produced no evidence to suggest that this is intended to be a temporary living arrangement.  I note that while the agreement purports to be temporary, it does not contain a termination date.  Rather, L.H.’s parents have indicated that the agreement will remain in effect “for as long as necessary.”  Further, as noted above, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child to another is not determinative in resolving the question of the child’s residence (Appeal of Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293; seealsoAppeal of C.S. and E.L.S., 48 Ed Dept Rep __, Decision No. 15,918; Appeal of Rosati, 38 id. 216, Decision No. 14,018).

I also note that, because L.H. is already 18 years old and above compulsory school age, it is likely that he will be under the custody and control of D.S. and F.S. for a relatively short time.  However, when viewed in the context of the totality of the record in this case, the fact that this living arrangement may cease when L.H. is “fully emancipated and self-supporting” does not constitute proof that D.S. and F.S. do not currently have custody and control or that L.H.’s residence with them is temporary (seeAppeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208).

Finally, noting that L.H.’s siblings continue to live with their parents in Ohio, respondent argues that it “is incongruous at best that [D.S. and F.S.] failed to take custody and control of [L.H.’s siblings].  This obvious inconsistency questions whether [L.H.’s] family situation is truly as Petitioners represent.  The inference that can be drawn is that the Petitioners’ sole intent is to take advantage of the District’s schools.”  I disagree and find the custodial arrangements for L.H.’s siblings to be irrelevant to his residency status (seeAppeal of Rosati, 38 id. 216, Decision No. 14,018).

In sum, the record does not support respondent’s conclusion that L.H.’s residence has been changed from that of his parents solely to take advantage of the educational program of another school district.  Rather, there is a valid reason unrelated to respondent’s educational program which prompted L.H.’s move from another state and petitioners have established that L.H.’s parents have relinquished custody and control to D.S. and F.S.  Under these circumstances, I find that L.H.’s actual and only residence is with D.S. and F.S. (seeAppeal of Lapidus, 40 Ed Dept Rep 21, Decision No. 14,408; Appeal of Rosati, 38 id. 216, Decision No. 14,018).

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 allow L.H. to attend school in the Coxsackie-Athens Central School District without the payment of tuition.

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