Appeal of C.S., on behalf of his nephew R.L.B.O., from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 16,697

(January 30, 2015)

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Ossining Union Free School District (“respondent”) that his nephew, R.L.B.O., (“the student”) is not a district resident.  The appeal must be dismissed.

On or about September 19, 2013, the student moved from Brazil to live with petitioner who resides within respondent’s school district.  The student previously lived with his father in Brazil and, apparently, was attending but had not yet completed ninth grade at the time he left the country. 

By a power of attorney executed by both of the student’s parents, dated February 27, 2013, petitioner and his wife (the student’s aunt) were given “full and unrestricted powers” to represent the student “in all acts of his civil life” in the United States.  The power of attorney stated that the student’s aunt and uncle were responsible for the student “during his stay in [the United States]” and further asserted that the student’s parents were married. 

On September 20, 2013, petitioner attempted to enroll the student in respondent’s schools.  Petitioner provided the February 2013 power of attorney, as well as the student’s identification card, immunization record, birth certificate, and school transcript from Brazil.  Petitioner also submitted his own utility bills and mortgage statement.  On September 23, 2013, at the district’s direction, petitioner provided a completed Custodial Affidavit from the student’s aunt and a completed Parental Affidavit Assigning Custody from the student’s father. 

On September 25, 2013, the superintendent denied petitioner’s request to enroll the student in respondent’s schools.  The superintendent stated that, after carefully considering the documentation provided by petitioner, he determined that petitioner had not established a complete and total transfer of care, custody, and control of the student.  Specifically, the superintendent stated that petitioner had “provided contradicting information concerning the status of [the student’s] parents in Brazil and the rationale for [the student] living with you….”  He further stated that it appeared that the student was living with petitioner “solely to take advantage of the schools” in the district.  Therefore, he concluded that the student was not eligible to attend respondent’s schools.  The September 25, 2013 letter further stated that it appeared that the student had “graduated from the highest level of compulsory education offered” in Brazil and, therefore, was not entitled to attend respondent’s schools tuition free.  Petitioner was afforded until September 30, 2013 to submit additional information regarding the student’s residency.

On October 7, 2013, petitioner met with the superintendent and director of pupil personnel services.  Petitioner presented additional information at this meeting, claiming that, despite what was sworn to in the power of attorney, the student’s parents were not married and that the reasons the student came to the United States were because his father worked nights, had suffered two heart attacks and could not care for his son.

Thereafter, by letter dated October 7, 2013, the superintendent denied petitioner’s request to register the student.  He again determined that petitioner had failed to establish a complete and total transfer of care, custody and control of the student.  Respondent also cited discrepancies between the initial registration materials, the power of attorney and the parental and custodial affidavits submitted by petitioner.  Specifically, he noted that the registration form indicated that the student’s parents were married and resided together, yet the parental and custodial affidavits stated that the student’s parents were divorced, the student’s mother had abandoned him when he was seven years old, and that the student’s father was unable to care for him. 

This appeal ensued.  Petitioner’s request for interim relief was denied on October 24, 2013.

Initially, I note as a procedural matter that both parties submitted numerous additional papers, including additional exhibits, for my consideration.  Most notably, petitioner submitted a second power of attorney dated October 18, 2013, which purports to correct errors in the original power of attorney.  In my discretion and for the completeness of the record in this appeal, I have considered all of the parties’ additional submissions, including the additional exhibits.

Petitioner alleges that the student’s parents surrendered custody and control of the student to him by the powers of attorney executed on February 27, 2013 and October 18, 2013.  Petitioner further alleges that the student’s father works six nights per week, “recently” had two heart attacks, and cannot care for the student.  Petitioner also claims that the student’s mother “does not provide any parental support” for the student and that she left the town in which the student and his father live over seven years ago to live elsewhere in Brazil, thus, abandoning her son.  Petitioner also asserts that respondent is incorrect in concluding that the student is precluded from attending school in New York due to his alleged completion of the highest level of compulsory education in Brazil.  Petitioner alleges that the student has not obtained a high school diploma and left Brazil during, but prior to completing, ninth grade.  Petitioner seeks a determination that the student is a resident of respondent’s district entitled to attend its schools.

Respondent maintains that its determination that the student is not a district resident is supported by the record.  Respondent argues that the powers of attorney submitted by petitioner are “a sham” and contends that the student is living in the district in order to take advantage of its schools.  Respondent asserts that petitioner submitted contradictory information and has not established a bona fide reason for the alleged transfer of custody.  Respondent further asserts that the student completed the highest level of compulsory education in Brazil and, therefore, is not eligible to attend respondent’s schools.

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).

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).

I will first address respondent’s assertion that the student is not eligible to attend the district’s schools because he graduated from the highest level of compulsory education in Brazil.  Education Law §3205(1)(a) requires that all children from six to sixteen years of age attend full-time instruction at public school or elsewhere.  As noted above, Education Law §3202(1) states that “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. . .” (emphasis added).  Respondent does not assert that the student received a diploma, nor does the record indicate that he received a diploma and graduated from the educational system in Brazil (cf. Appeal of Botros, 46 Ed Dept Rep 142, Decision No. 15,467).  Therefore, the fact that the student may have exceeded the level of compulsory education required in Brazil is irrelevant.  Insofar as the record does not establish that the student received a high school diploma, he is not precluded from attending school in New York on that basis.

However, respondent argues that petitioner has not established that custody and control of the student was transferred for bona fide reasons, other than to attend school in the district.  According to the record, petitioner initially provided the February 2013 power of attorney, which granted “full and unrestricted powers” to petitioner and his wife to represent the student “in all acts of his civil life” in the United States.  Moreover, that power of attorney stated that petitioner and his wife were responsible for the student only “during his stay in [the United States].”  That language did not establish a total and permanent transfer of care, custody and control over the student nor does it evidence the student’s intent to permanently reside in the district.  It merely gives certain authority to petitioner for the duration of the student’s stay in the United States, however long or short that stay may be (see e.g., Appeal of Chorro, 44 Ed Dept Rep 50, Decision No. 15,095). 

Respondent also points out that, although petitioner claimed he had obtained total custody and control by virtue of the February 2013 power of attorney, the student did not come to live with him until September 2013.

The second power of attorney, dated October 18, 2013, does not contain the language regarding the transfer of care, custody and control only for the duration of the student’s stay in this country.[1]  However, the powers conferred remain the same – “to represent the minor… in all acts of his civil life in America” and “to represent him before teaching, leisure and health institutions….”  Moreover, I note that the second power of attorney was executed on October 18, 2013 - after the appeal was filed - and was submitted by petitioner herein.

In addition, the inconsistencies in the documentation supplied by petitioner, such as the change in the student’s parents’ marital status, the claimed joint custodial relationship between petitioner and the student’s parents, the new claim that the student’s mother abandoned him, and the change in the power of attorney in the wake of respondent’s initial residency inquiry support respondent’s conclusion regarding the veracity of petitioner’s position.

Such inconsistencies also undermine petitioner’s assertions that bona fide reasons – other than taking advantage of respondent’s schools - exist for the alleged transfer of custody.  Evidence submitted by petitioner reflects that the father’s first heart attack occurred in October 2012 and a second episode occurred in February 2013.  Despite petitioner’s claims that the student’s father could not care for him in part because of his medical condition, thus necessitating the student’s transfer to the United States, the student remained with his father in Brazil under his care until September 2013, more than six months after his second heart attack.  Therefore, the student’s father could and did care for the student notwithstanding any medical issues.  The record also indicates that, although petitioner’s wife went to Brazil in or about March 2013, it was determined that the student would remain there with his father and he did not return with petitioner’s wife. 

In further contradiction of petitioner’s claims, there is no conclusive evidence in the record that the student’s mother abandoned him.  The student’s mother is listed as a parent on the student’s academic records and her name appears on his Brazilian identification card dated 2009, as well as medical documentation presented by petitioner to respondent as part of his registration materials.  Moreover, she was present and signed both powers of attorney in 2013.

Based on the totality of the evidence in the record, I concur with respondent that the student is living with petitioner, not for other bona fide reasons, but to take advantage of respondent’s schools.  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).  Therefore, the appeal is dismissed.

In light of the above determination, I need not review petitioner’s remaining contentions.  However, I note that petitioner retains the right to reapply for the student’s admission to the district at any time, should circumstances change, and to present any new information or documentation bearing on the student’s residency, including, for example, a custody order, for respondent’s consideration.

THE APPEAL IS DISMISSED.

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