Appeal of SU LIN WU, on behalf of her nephew WEI HSUAN WU, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16,300

(September 1, 2011)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

GREY, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that her nephew, Wei Hsuan Wu (“Oscar”), is not a district resident.  The appeal must be dismissed.

In January 2011, petitioner requested that Oscar be permitted to attend respondent’s schools.  At that time, petitioner indicated that Oscar - along with his mother, father and cousins - were living with her in her home within respondent’s district.  The district asserts that, as part of a standard practice for new students, a private investigator was sent to petitioner’s home to verify that, in fact, Oscar’s parents were living with petitioner.  In an affidavit, respondent’s registrar avers that the investigator made several attempts to visit the home, but was told that Oscar’s parents were in California and that no date was set for their return.  The registrar contacted Oscar’s cousin, Steven Huang, designated as Oscar’s emergency contact person, and explained that she had concerns about Oscar’s meeting student residency requirements.  According to the registrar, Mr. Huang then claimed that the family would arrange for legal guardianship in order for Oscar to remain in respondent’s schools.

By letter dated March 3, 2011, the registrar informed Oscar’s parents that Oscar was not a district resident and would be excluded from school on March 15, 2011 if they did not present evidence of residency.  A meeting was scheduled for March 11, 2011, which was attended by petitioner and Mr. Huang.  At the meeting, petitioner and Mr. Huang presented a “power of attorney” signed by Oscar’s parents purporting to authorize petitioner or Mr. Huang to make educational decisions for Oscar.  The district registrar noted that the power of attorney was notarized in Taiwan and that the address Oscar’s parents listed for themselves was in Taiwan.  According to the registrar, Mr. Huang then claimed that Oscar’s parents were in Taiwan for business and would return in a month or two.  The registrar provided petitioner and Mr. Huang additional time to submit further proof of residency.

On March 18, 2011, Mr. Haung submitted a district “Guardian/Custodian Affidavit” from petitioner and a “Parents Affidavit of Custody” from Oscar’s father.  In essence, these affidavits stated that Oscar had lived with petitioner since January 11, 2011, that all expenses are paid for by Oscar’s parents, that petitioner does not claim Oscar as a dependent for tax purposes, that his parents’ address is in Taiwan and they remain there for business reasons, and that the agreement for Oscar’s placement with petitioner runs from February 1, 2011 to February 1, 2013.

By letter dated March 21, 2011, the registrar informed petitioner and Mr. Huang that a determination was made that Oscar was not a district resident.  On March 29, 2011, petitioner appealed the determination to respondent.  Along with the appeal, petitioner’s attorney informed respondent that petitioner was commencing legal guardianship proceedings.  By letter dated April 13, the district clerk informed petitioner and Mr. Huang that the board had denied their appeal and Oscar would be excluded from respondent’s schools effective April 15, 2011.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 6, 2011.

Petitioner asserts that Oscar is a resident of respondent’s district.  Petitioner argues that there has been a transfer of parental responsibility to her and Mr. Huang through the power of attorney documents and that a legal guardianship proceeding is pending.  Petitioner claims that Oscar’s parents sent him to live with petitioner for an opportunity to be educated in America, that his relationship with is parents is “very good,” and that Oscar intends to reside with her for approximately ten years.

Respondent contends that the appeal must be dismissed for failure to state a claim upon which relief may be granted.  Respondent maintains that Oscar is not a district resident, that petitioner failed to rebut the presumption that Oscar resides with his parents outside the district, and that the purported transfer of custody is temporary and for educational purposes.  Respondent further asserts that petitioner lacks standing to bring the instant appeal.

I will first address two procedural issues.  First, by letters dated August 12, 2011 and August 23, 2011, respondent requested consideration of two sur-replies.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  The record reveals that on or about April 1, 2011, petitioner initiated formal guardianship proceedings in Nassau County Family Court, with a hearing scheduled for May 17, 2011.  Respondent asserted in its answer that it intervened in the proceeding and no determination had been made by the court.  Since these sur-replies deal with developments regarding this guardianship proceeding that occurred subsequent to respondent’s answer, I have accepted respondent’s sur-replies for consideration.

Next, respondent contends that petitioner lacks standing to maintain 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 Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  In this case, petitioner is a resident of respondent’s school district.  As such, a child residing in her household for whom the presumption of parental residence has been rebutted may attend district schools tuition-free.  Petitioner alleges that respondent has abrogated that right, and I therefore find that she may bring an appeal to challenge respondent’s action (seeAppeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Bocek, 37 id. 130, Decision No. 13,822).  Moreover, respondent acknowledged petitioner’s interest in this matter by sending petitioner and Mr. Huang a bill for “non-residence tuition” for $6,179.53 and an April 13, 2011 letter notifying petitioner of her right to appeal the residency determination to the Commissioner of Education (seeAppeal of C.G., 46 Ed Dept Rep 6, Decision No. 15,423).  Accordingly, I will not dismiss this appeal for lack of standing.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner has failed to establish that custody has legally been transferred to her pursuant to a court order.  As noted above, although petitioner did initiate guardianship proceedings, respondent’s August 12th sur-reply indicates that, on or about August 9, 2011, petitioner withdrew such proceedings.  Further, in its August 23, 2011 sur-reply, respondent submitted a copy of a signed order of dismissal of the guardianship proceedings from the Nassau County Family Court dated August 15, 2011.

In the absence of a court order, residency must be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of G.M-H., 46 id. 84, Decision No. 15,447).  In this case, petitioner has failed to rebut the presumption that Oscar’s residence is with his parents in Taiwan.  As set forth above, the affidavits submitted by petitioner and Oscar’s parents in support of their requests for his admission to respondent’s schools indicate that his parents would continue to provide ongoing financial support, that he would remain with petitioner temporarily until at least February 2013, and that a desire to pursue education in the United States was the reason for his placement with petitioner.  The petition in the instant appeal reiterates many of these same claims.  Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  Under these circumstances, I find that petitioner has not met her burden of proving that Oscar is a district resident and that respondent’s determination that Oscar is not a district resident was reasonable and not arbitrary or capricious.  The appeal must therefore be dismissed.

While the appeal must be dismissed, I note that petitioner may reapply to the district for admission on Oscar’s behalf at any time and may present for respondent’s consideration any new information bearing on the question of residence.

THE APPEAL IS DISMISSED.

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