Appeal of SHU XIAN LEE, on behalf of her cousin KA YEE LUI, from action of the Board of Education of the Hicksville Union Free School District regarding residency.

Decision No. 16,453

(January 29, 2013)

Leagh & Associates, PLLC, attorneys for petitioner, John J. Leagh, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondents, Christopher F. Mestecky, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Hicksville Union Free School District (“respondent”) that her cousin, Ka Yee Lui, is not a district resident.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district and Ka Yee’s parents reside in Hong Kong.  The record indicates that Ka Yee began living with petitioner in July 2011.  In August 2011, petitioner sought to enroll Ka Yee in respondent’s schools.

A residency hearing was held on August 18, 2011, before a hearing officer.  By letter dated August 22, 2011, respondent’s Director of Special Education and Pupil Personnel Services notified petitioner that Ka Yee was not a legal resident of the district and would not be permitted to register for school.  Subsequently, petitioner filed a petition with the Nassau County Family Court (“the court”) to be appointed legal guardian of Ka Yee.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 14, 2011.

Petitioner contends that she is Ka Yee’s legal guardian and, as such, she provides full financial support to Ka Yee and makes all decisions regarding her upbringing and health care.  Petitioner contends that she will provide food, shelter, clothing, and medical care for Ka Yee.  Petitioner alleges that Ka Yee’s parents cannot provide proper care for her and have surrendered their parental control.  Petitioner maintains that she has petitioned the Nassau County Family Court for legal guardianship of Ka Yee.  Petitioner also contends that her testimony at the residency hearing was misinterpreted and that she was not represented by counsel.  Finally, petitioner maintains that respondent’s actions were arbitrary and capricious.

Respondent alleges, interalia, that petitioner has failed to establish a clear legal right to the relief requested and that Ka Yee is not a district resident and is residing with petitioner for the purpose of taking advantage of the district’s schools.  Respondent maintains that petitioner has failed to overcome the presumption that Ka Yee’s residence is that of her parents in Hong Kong and that there has not been a total and permanent transfer of custody and control over Ka Yee.    Finally, respondent maintains that its decision was not arbitrary or capricious.

I must first address petitioner’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,779; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed petitioner’s memorandum of law, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in respondent’s pleadings.

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).

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).

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).

In this case, petitioner has failed to rebut the presumption that Ka Yee’s residency is with her parents in Hong Kong.  The record contains a notarized “Authorization [for] permanent guardianship,” which was signed by Ka Yee’s parents on July 22, 2011, as well as copies of respondent’s “Affidavit of Non-Resident Custodial Parent or Legal Guardian” forms, in which Ka Yee’s parents state that she will be residing with petitioner due to “temporary oversea [sic] employment.”  However, I note that the notary’s jurat on both form affidavits states that they were sworn to and subscribed by Ka Yee’s parents on August 24, 2011 – after respondent’s August 22, 2011 residency determination.

As noted above, prior to commencing this appeal, petitioner filed an application with the court to be appointed Ka Yee’s legal guardian, which application was opposed by respondent.  The record indicates that, on October 21, 2011, the court granted a temporary order appointing petitioner as Ka Yee’s guardian until December 16, 2011.  On December 16, 2011, however, the court denied petitioner’s application for a final order of guardianship.  In its decision, the court stated that petitioner’s “testimony clearly establishes the following:  Ka Yee’s parents remain involved in decisions relating to her health and education; Ka Yee’s parents continue to provide her with financial support, and:  Ka Yee’s mother is usually in the home and thus available to provide parental care and guidance to the subject minor” (In the Matter of a Guardianship Proceeding Shu Xian Lee v. Yuen Fun Fung and Chi Yan Lui, Nassau County Family Court, Docket No: G-00894-11, December 16, 2011).

On this record, petitioner has not established that Ka Yee’s parents have made a total and permanent transfer of Ka Yee’s custody and control to petitioner.  To the contrary, petitioner’s application for a final order of guardianship has been denied by the court.  Moreover, petitioner testified at the residency hearing that Ka Yee’s parents will continue to provide Ka Yee with financial support including money for clothing, medical insurance and other expenses.  Additionally, petitioner stated that she will consult with Ka Yee’s parents with regard to educational and medical decisions.  Petitioner further testified that Ka Yee wanted to go to school in the United States to learn English and because many of her friends are going overseas for school.  Petitioner’s contentions in her petition to the contrary were made after the residency determination and appear to be specifically designed to address and undermine the rationale for respondent’s determination.

Based on the totality of the record before me, I find that respondent’s determination that Ka Yee is not a district resident was neither arbitrary nor capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Ka Yee’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.