Appeal of TRINIDAD GUEVARA, on behalf of her niece JULIA, from action of the Board of Education of the Hicksville Union Free School District regarding residency.

Decision No. 16,634

(July 29, 2014)

 

Law Offices of Guercio & Guercio, LLP, attorneys for respondent, 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 niece, Julia, is not a district resident.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district.  According to petitioner, petitioner is the aunt and legal guardian of Julia, who came to live with petitioner and her family on August 15, 2013.  Prior to August 15, 2013, Julia lived with her mother, petitioner’s sister, in El Salvador.  According to the record, Julia’s father lives in the United States, outside New York, but Julia is not in contact with him.  

On August 18, 2013, petitioner attempted to enroll Julia in respondent’s district for the 2013-2014 school year.  According to respondent, when it learned that Julia was residing with someone other than a parent or legal guardian, it scheduled a residency hearing pursuant to section 100.2(y) of the Commissioner’s regulations for September 20, 2013.    

At the September 20, 2013 residency hearing, petitioner testified that, after Julia was born in the United States, her mother “got very sick” with depression, fainting, and illness.  According to petitioner, when Julia was “[s]ix, eight months old,” Julia went with her mother to El Salvador, where her mother saw doctors and “got a lot better.”  Petitioner testified that, in June 2013, Julia’s grandmother informed petitioner that she and Julia agreed that Julia “should stay [with petitioner] so she can go to school.”  Petitioner also testified that she spoke with Julia’s mother, who “thinks that Julia should live here indefinitely.”  Petitioner further testified that she would be taking care of Julia financially and making decisions on her behalf with regard to “[c]ertain things.”  With regard to the medical, educational, and “more serious” decisions on Julia’s behalf, petitioner would first consult with Julia’s mother.  In addition, petitioner testified that Julia would return to El Salvador every summer, “as long as she wants to,” to stay with her mother.    

By letter dated September 23, 2013, respondent’s director of special education/pupil personnel services (“director”) advised petitioner of respondent’s determination that Julia is not a legal resident of respondent’s district and would not be permitted to register as a student in the district.  The following basis was provided for the determination:

• Under the Education Law, a person can have only one legal residence.  A child’s residence is presumed to be that of his/her parent(s) or legal guardians.  You testified at the hearing that Julia’s mother resides in El Salvador and her father does not reside in New York. 
• There has not been a total, and presumably permanent transfer of custody and control over Julia from her mother to you.  Julia’s mother continues to have legal authority over Julia in that she continues to make educational and medical decisions for her.
• You testified at the meeting that a primary reason why Julia is residing with you is for the purpose of attending school in the District.

This appeal ensued.  Petitioner’s request for interim relief pending a determination on the merits was granted on November 5, 2013.   

Petitioner contends that Julia, a United States citizen, resides with her and that Julia’s mother has relinquished custody and control of Julia to her.  Petitioner requests a determination that Julia is a resident of respondent’s district and is entitled to attend without the payment of tuition.   

Respondent contends that petitioner has failed to state a claim upon which relief may be granted; failed to meet her burden of establishing a clear legal right to the relief requested; failed to demonstrate a likelihood of success on the merits; and failed to overcome the presumption that Julia’s residence is that of her mother.  Respondent also asserts that there has not been a total and permanent transfer of custody and control over Julia from her mother to petitioner; that Julia is not a legal resident of respondent’s district; and that Julia is residing with petitioner for the purpose of taking advantage of respondent’s schools.

Initially, I must address a procedural matter.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).  Respondent requests that I accept its late answer, served more than 20 days following service of the petition as required pursuant to §275.13 of the Commissioner’s regulations.  Petitioner does not object to the late submission.  I note that the answer reiterates the position set forth in respondent’s affirmation in opposition to petitioner’s request for interim relief, which was timely submitted, and which was also submitted in opposition to the petition.  Under these circumstances, and in the absence of prejudice to petitioner, I have considered respondent’s answer (Appeal of Kendall, 50 Ed Dept Rep, Decision No. 16,149; Appeal of Bacchus, 38 id. 123; Decision No. 13,998).

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).

Custody may be legally transferred from a parent or guardian to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction.  Where a court of competent jurisdiction has legally transferred custody of a child, and the child actually lives with the court-appointed guardian, the Commissioner will accept the court’s order as determinative for residency purposes, and will not look behind the court’s decision to determine whether the custody transfer is bona fide (Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).  This approach recognizes that a change in custody is a serious, life-changing event for all involved based on factors not always apparent in the context of a residency appeal to the Commissioner.  Any objection to the legitimacy of the transfer should be made before the court in a custody proceeding, not in a subsequent educational appeal to the Commissioner of Education (Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).

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 (see 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).  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 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).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of Dennis, 47 id. 327, Decision No. 15,712).  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 A Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652).

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).

On the record before me, petitioner has not carried her burden of establishing that there has been a total and permanent transfer of custody and control over Julia from Julia’s mother to petitioner.  In the petition, petitioner alleges that Julia’s mother “is unable to care for [Julia] due to mental illness,” and “[a]t times when she is not medicated, there is no one to care [for] Julia.”  As a result, petitioner alleges that she was asked “to become Julia’s legal guardian” so that Julia could “permanently reside in the United States” with petitioner.  However, the record contains no evidence of a custody order or letters of guardianship sufficient to transfer legal custody (see e.g., Appeal of Fernandez, 52 Ed Dept Rep, Decision No. 16,486; Appeal of Lewis, 52 id., Decision No. 16,458). 

Moreover, petitioner submitted no evidence to substantiate her claims regarding Julia’s mother’s condition or inability to care for her daughter.  While petitioner testified at the residency hearing that, shortly after Julia was born, her mother “got very sick,” she also testified that Julia’s mother “got a lot better” when she returned to El Salvador and received medical treatment when Julia was six or eight months old.   Although she alleges in the petition that Julia’s mother “is unable to care for [Julia] due to mental illness,” the record contains no medical or other evidence regarding Julia’s mother’s current condition.  

Additionally, while petitioner testified that Julia would return to El Salvador each summer to stay with her mother, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Lebron, 35 id. 359, Decision No. 13,570; Appeal of McMullan, 29 id. 310, Decision No. 12,304).  However, petitioner offers no explanation as to how Julia’s mother is unable, due to mental illness, to care for her during the summer months but not during the school year. 

To the contrary, the record indicates that the sole reason Julia came to the United States to live with petitioner is to take advantage of respondent’s schools.  Indeed, petitioner’s testimony belies her allegations that Julia’s mother is unable to care for her:

Q:   Okay.  Tell me about the conversation that you had with Julia’s mother about Julia coming to live with you in Hicksville.

A:   ... Julia’s mother wanted Julia to come here so she can study here.

***

Q:   Do you know why Julia’s grandmother came here in June to tell you this information?

A:   ... Julia and Julia’s grandmother are in agreement she should stay here so she can go to school.  That’s why they ask [me] if [I] can take care of Julia.

***

Q:   Is it your understanding that the sole reason that Julia’s coming to live with you is so she can attend school here?

A:   Yes.

***

Q:   Were any other reasons given to you as to why Julia had come to live with you other than school?

A:   Just for the school.

***

Q:   Did she give you the same reason, she wanted Julia to come here for school reasons?

A:   Yes.

Therefore, the record indicates that Julia is staying with petitioner to attend her school district tuition-free (see Appeal of Schillaci, 53 Ed Dept Rep, Decision No. 16,570). 

I cannot find on this record that petitioner has demonstrated the necessary permanent and total transfer of custody and control.  Contrary to her contention that she is Julia’s “legal guardian,” petitioner has failed to establish that there has been a total and permanent transfer of custody and control of Julia to her and therefore has not rebutted the presumption that Julia’s residence is with her mother in El Salvador (see Appeal of Shillaci, 53 Ed Dept Rep, Decision No. 16,570).  Therefore, on this record, the presumption of parental residence has not been rebutted, and Julia’s legal residence is with her mother in El Salvador (see Appeal of Schillaci, 53 Ed Dept Rep, Decision No. 16,570; Appeal of Brunot, 35 id. 402, Decision No. 13,584). Accordingly, based on the record before me, I cannot conclude that respondent acted arbitrarily and capriciously in determining that Julia is not a district resident.

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

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on Julia’s behalf at any time, should circumstances change, and to present any documentary evidence for respondent’s consideration regarding legal transfer of custody or other bona fide reason(s) for establishing residence apart from her mother.  This evidence may include, but is not limited to, a custody order or letters of guardianship from a court of competent jurisdiction, proof that the parent is not competent or is otherwise unable to care for her daughter, proof that the parent's whereabouts are unknown or that the parent is otherwise unable to be contacted, or evidence that the child is a homeless unaccompanied youth within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq.).

 

THE APPEAL IS DISMISSED.

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