Appeal of T.D., on behalf of her grandchild K.L.M., from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 16,715

(February 19, 2015)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that her grandchild is not a resident of the district.  The appeal must be dismissed.

Petitioner, a district resident, sought to enroll her grandchild K.L.M. in respondent’s schools on August 1, 2014.   Petitioner asserts that K.L.M. has resided with her and her husband, J.D., at the in-district residence for three years due to the financial instability of K.L.M’s parents, K.M. and H.M.  Petitioner asserts that she and J.D. provide food, shelter and clothing to K.L.M. and exercise control over her activities and behavior.

On August 1, 2014, petitioner and K.L.M.’s mother submitted custodial and parental affidavits to respondent.  The affidavits state that K.L.M. resides exclusively with petitioner at the in-district address and will remain there indefinitely, until K.M. and H.M. are financially stable and are able to secure suitable living conditions.  The affidavits assert that petitioner and J.D. are exclusively responsible for providing K.L.M. with food, clothing, medical expenses, and all other necessities.  The affidavits further assert that decisions relating to the health, welfare, and education of K.L.M. will be shared among petitioner, J.D., and K.L.M.’s parents.  By letter dated August 4, 2014 respondent’s director of student services and central registration notified petitioner that K.L.M. did not meet the qualifications for residence based on the affidavits submitted by petitioner and K.M.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 15, 2014.

Respondent maintains that petitioner has failed to state a claim upon which relief may be granted.  Specifically, respondent contends that the custodial and parental affidavits submitted by petitioner reflect that the custodial arrangement is temporary in nature.  Respondent further asserts that the decision that the student is not a district resident was neither arbitrary nor capricious.

As a procedural matter, I note that with her petition, petitioner submits a “Childcare Authorization Form,” effective December 1, 2013 until explicitly terminated, which grants “temporary custody” of K.L.M. to petitioner and J.D.  Respondent notes that such documentation was not presented upon petitioner’s request for K.L.M.’s admission into the district.   Although this evidence was not previously considered, respondent has had ample opportunity to, and did in fact, address it in its answer, and thus, I have considered the document (Appeal of C.G., 54 Ed Dept Rep, Decision No. 16,642,  Appeal of Stagno, 51 Ed Dept Rep, Decision No. 16,304; Appeal of Landon, 49 id. 23, Decision No. 15,948).

The appeal must be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part, as follows:

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).

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).

Here, petitioner asserts that the student resides with her and respondent does not dispute that petitioner is a district resident.  However, a showing of a child’s physical presence in a school district, standing alone and without regard to the retention of parental control, is not sufficient to rebut the presumption that a child resides with his or her parent (Caitlin v. Sobol, 77 NY2d 552, 561 [1991]).  In this case, the affidavits submitted by petitioner and K.L.M.’s mother are clear that the transfer of custody, care and control of the student is temporary rather than permanent in nature.  Indeed, both affidavits submitted to respondent and the child care authorization form included with the petition specifically state that the custody arrangement will continue only until K.L.M.’s parents’ situation stabilizes.  Moreover, the affidavits indicate that K.M. and H.M. retain decision-making authority over the medical and educational needs of the student.

While petitioner asserts that K.L.M. lives with her and her husband due to the financial hardship of K.L.M.’s parents, petitioner fails to submit any documentation of those circumstances.  Moreover, the affidavits submitted by petitioner and K.L.M.’s mother list K.L.M.’s parents - as well as petitioner and her husband - as having custody and control, including “the right to make decisions pertaining to the health, welfare and education of” K.L.M.

On the record before me, petitioner has not met her burden of proving that there has been a total and permanent transfer of custody and control of K.L.M.  As noted above, while petitioner has produced a “Child Care Authorization” from K.L.M.’s mother, such document only purports to grant temporary custody and does not establish that there has been a permanent and total transfer of custody.  Indeed, the document states that the arrangement will be effective only “until terminated.”  On this record, petitioner has failed to rebut the presumption that the student’s legal residence is with her parents, outside of the district, and I cannot find that respondent acted arbitrarily by determining that the student is not a resident of the district (see e.g., Appeal of L.B., 54 Ed Dept Rep, Decision No. 16,672; Appeal of Galay and Perez, 37 Ed Dept Rep 128, Decision No. 13,821).

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

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on K.L.M.’s behalf at any time, should circumstances change, and present any additional information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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