Appeal of D.P., on behalf of her daughter K.S., from action of the Board of Education of the City School District of the City of Hornell regarding residency.

Decision No. 16,673

(October 6, 2014)

Hodgson Russ, LLP, attorneys for respondent, Emina Poricanin, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Hornell (“respondent”) that her daughter, K.S., is not a district resident.  The appeal must be dismissed.

Petitioner resides outside respondent’s district in the Jasper-Troupsburg Central School District (“Jasper-Troupsburg”).  The record indicates that on March 31, 2014, petitioner attempted to enroll K.S. in respondent’s schools.  At that time, petitioner submitted a notarized “Temporary Guardianship Agreement” (“agreement”) with her request for K.S.’s admission which was signed by petitioner and dated March 30, 2014.  Pursuant to the agreement, effective March 30, 2014, petitioner granted temporary custody of K.S. to K.S.’s maternal grandmother, a district resident, for “as long as necessary.”  The agreement also stated that petitioner grants permission for medical treatment on K.S.’s behalf “until such time as [petitioner] can be contacted.” 

The petition states that K.S. moved to the in-district address on March 30, 2014 and that “[t]he intention was for [K.S.] to reside there full time” and “[h]er maternal grandmother [K.R.] would have assumed temporary guardianship at that time with the intention that [K.S.] would have enrolled as a student in [respondent’s district] for the remainder of her junior and senior years.”  Petitioner explains that K.S. moved to the in-district address on March 30, 2014 to “get a fresh start”  because she had been “experiencing academic and social difficulty” in her prior school district as a result of “some bad personal choices” which led her “being subject to school discipline.”  Petitioner further notes that K.S. “has been undergoing psychiatric counseling to help her make better choices” and “is willing to take responsibility for her actions,” however, due to the “small district” and a student population that is “fully aware” of K.S.’s past history and includes students who “continue to encourage [K.S.] to perpetuate her poor choices,” it has been difficult to get a fresh start which has had a “negative impact on [K.S.’s] academics.” 

Via telephone call with petitioner’s husband (K.S.’s step-father) on or about April 2, 2014,[1] respondent’s superintendent rendered his decision to deny K.S. admission to respondent’s schools.  While the parties’ accounts of this communication differ, each acknowledges that no written decision regarding respondent’s denial of K.S.’s admission was issued.  Petitioner’s husband’s affidavit states that he was told that the reason K.S. could not attend respondent’s district was “because we did not get a court ordered permanent change of [K.S.’s] guardianship to my mother-in-law” and that the agreement submitted with K.S.’s application was “not a legal document.”  The affidavit goes on to state that he was advised by the superintendent that “we would have to relinquish all legal parental rights to [K.S.] through family court.”  The superintendent’s affidavit states that during the call, he told petitioner’s husband that based on the information provided, including the “Temporary Guardianship Agreement,” which “on its face” did not constitute a formal transfer of guardianship to K.S.’s maternal grandmother and the explanation of K.S.’s difficulties at Jasper-Troupsburg, she did not satisfy the district’s residency requirements for admission.[2]  The superintendent’s affidavit states that petitioner’s husband appeared to understand the basis for the denial rendered over the telephone and neither petitioner nor her husband ever indicated that they misunderstood the process.[3]  This appeal ensued. 

Petitioner contends that since respondent’s denial, K.S. has been attending school in Jasper-Troupsburg until such time as this matter can be resolved.  The petition states that K.S. intends to move to the in-district address to live with her maternal grandmother for the reasons stated above and to reside there “for approximately the next eighteen months.”  Petitioner also states that K.S.’s grandmother will be supporting K.S. and will provide food, shelter, and clothing and will exercise control over K.S.’s activities and behavior. As further stated in the petition, petitioner will be surrendering parental control over K.S. to K.S.’s grandmother via the agreement and K.S. intends to maintain regular contact with her mother and step-father.  Petitioner requests a determination that when K.S. resides at the in-district address, she is a resident of respondent’s district and is entitled to attend its schools without the payment of tuition. 

Respondent contends that the petition should be dismissed as moot.  Respondent maintains that it properly determined K.S.’s residency status and that petitioner failed to prove K.S. resides in the district and that there was a valid transfer of guardianship from petitioner to K.S.’s grandmother.  Respondent also contends that the sole reason for the transfer of guardianship is to gain admission to district schools.  

I must first address the procedural issues.  Respondent argues that the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Respondent cites Appeal of Balaj (53 Ed Dept Rep, Decision No. 16,585) to support its claim that, because K.S. has enrolled in school in Jasper-Troupsburg, the appeal must be dismissed as moot.  However, the record in Balaj indicated that, subsequent to the district’s residency determination, the children’s mother requested that their school records be transferred to another school district where she apparently enrolled them and petitioner (the children’s father who resided within that respondent’s district) submitted no evidence to refute the assertion and demonstrate that the children’s residency in the original school district was still in actual controversy.  Unlike Balaj, petitioner in the instant appeal asserts that “[s]ince [respondent] denied [K.S.] admission as a student, she has returned to the Jasper-Troupsburg Central School [District] to continue her education until such time as this matter can be resolved,” and that her daughter intends to relocate to the in-district residence.  Accordingly, under these circumstances, I decline to dismiss the appeal as moot (see e.g., Appeal of a Student with a Disability, 37 Ed Dept Rep 166, Decision No. 13,832).

Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).

The record in this matter reflects that respondent failed to comply with §100.2(y) of the Commissioner’s regulations.  In particular, respondent failed to provide petitioner with a written notice stating the basis of its residency determination and including a statement regarding the right to appeal the determination to the Commissioner.  Accordingly, I find that the district violated the requirements of §100.2(y) and admonish respondent to comply henceforth with the procedures established therein (see Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Steiner, 33 id. 420, Decision No. 13,099).  However, each party acknowledges that respondent’s residency determination was rendered during the telephone call on or about April 2, 2014, and while the parties’ accounts differ, the record indicates that the basis for the denial was discussed during that call, namely, whether the transfer of guardianship was valid in terms of being total and permanent.  Respondent also contends that petitioner had an opportunity to submit information regarding K.S.’s right to attend school in the district prior to its determination, which has not been rebutted by petitioner.  As I find that petitioner was not deprived of the opportunity to appeal respondent’s determination to me, and has had an opportunity to present evidence here in support of K.S.’s residency claim, I will address the merits of petitioner’s appeal (see e.g., Appeal of Butler and Dunham, 50 Ed Dept Rep, Decision No. 16,103; Appeal of Striano, 47 id. 137, Decision No. 15,651; Appeal of Clark, 46 id. 143, Decision No. 15,468).

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 (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 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).

     Respondent maintains that there has not been a total and permanent transfer of custody of K.S. to her grandmother.  Contrary to respondent’s claims, petitioner’s use of the “Temporary Guardianship Agreement,” which on its face granted temporary custody “for as long as necessary,” would not necessarily be dispositive of K.S.’s residency were a total and permanent transfer of custody supported by the totality of the record (cf. Appeal of L.H., D.S. and F.S., 49 Ed Dept Rep 14, Decision No. 15,947) [other than the existence of a “Temporary Guardianship Agreement,” respondent produced no evidence to suggest that the living arrangement was intended to be temporary; while the agreement purported to be temporary, it did not contain a termination date and indicated that the agreement will remain in effect “for as long as necessary”]).  However, respondent also contends that, by petitioner’s own admission, K.S. intends to reside with her grandmother in the district “for approximately the next eighteen months.”  Here, unlike the facts presented in Appeal of L.H., D.S. and F.S. (49 Ed Dept Rep 14, Decision No. 15,947), it is undisputed that the custody arrangement is only for a finite period - eighteen months (presumably until K.S. finishes high school).  Accordingly, I find that petitioner has not established that there has been a total and permanent transfer of custody and control, given the limited period of time for the transfer of custody (see Appeal of Cusi, 53 Ed Dept Rep, Decision No. 16,517). 

With respect to whether the transfer of custody was total, respondent argues that petitioner has not proven that K.S.’s grandmother would bear any financial responsibility for her despite petitioner’s statement that K.S’s grandmother would provide food, shelter and clothing.  Further, respondent contends that K.S.’s grandmother’s lack of authority with respect to K.S. is evidenced by the fact that petitioner - not K.S.’s grandmother - submitted both the application for K.S.’s admission and this appeal.  Specifically, respondent notes that K.S.’s grandmother never contacted the district nor has she provided any affidavit in support of petitioner’s appeal.  Furthermore, respondent notes that petitioner only consented to limited authority for medical decisions by K.S.’s grandmother, as the Temporary Guardianship Agreement grants permission for medical treatment only until petitioner can be contacted. 

On this record, I find that petitioner has failed to rebut the presumption that K.S. resides with her.  There is nothing in the record to demonstrate that K.S.’s grandmother has full authority and responsibility with respect to K.S.’s support and custody other than the conclusory statement by petitioner that K.S.’s grandmother will be supporting her with necessities and exercising control over her activities and behavior.  Further, the fact that petitioner made the application for admission to the district (on March 31, 2014) and brought this appeal challenging respondent’s determination (on April 22, 2014), belies petitioner’s statement that she surrendered parental control over K.S. via the agreement dated March 30, 2014.  I also note that K.S.’s grandmother neither acknowledged or accepted the agreement, and did not submit an affidavit which could have lent support to K.S.’s application and this appeal (cf. Appeal of Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of R.K, 49 id. 133, Decision No. 15,978).  In addition, while the portion of the agreement that grants limited consent for medical treatment is not dispositive of K.S.’s residency, without any other evidence in the record to the contrary supporting a total and permanent transfer of custody to K.S.’s grandmother, it supports a finding that petitioner has not relinquished total control as she has retained control over important issues such as medical decisions (cf. Appeal of L.H., D.S. and F.S., 49 Ed Dept Rep 14, Decision No. 15,947).

While the appeal must be dismissed, I note that petitioner retains the right to reapply for K.S.’s admission to the district at any time, should circumstances change, and to present any new information or documentation bearing on K.S.’s residency for respondent’s consideration. 

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

 

THE APPEAL IS DISMISSED.

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