Appeal of the BOARD OF EDUCATION OF THE DANSVILLE CENTRAL SCHOOL DISTRICT from action of the Board of Education of the City School District of the City of Rochester, the Board of Education of the York Central School District and the Livingston County Department of Social Services regarding tuition reimbursement. 

Decision No. 17,046

(February 15, 2017)

Ferrara Fiorenza, PC, attorneys for petitioner, Jeffrey M. Lewis, Esq., of counsel

Steven G. Carling, Interim General Counsel, attorney for respondent Board of Education of the Rochester City School District, Diane M. Cecero, Esq., of counsel

Osborn, Reed & Burke, LLP, attorneys for respondent Board of Education of the York Central School District, Jennifer M. Schwartzott, Esq., of counsel

Livingston County Department of Social Services, John T. Sylvester, Esq., Social Service Attorney

ELIA, Commissioner.--Petitioner appeals the refusals of the Board of Education of the Rochester City School District (“respondent Rochester”) and the Board of Education of the York Central School District (“respondent York”) to pay the tuition of a foster care student (“the student”) for the 2015-2016 school year.  The petition also alleges that Livingston County Department of Social Services (“respondent DSS”) is fiscally responsible for petitioner’s tuition expenses in connection with the student since it failed to provide timely notice and/or failed to render its determination in a timely manner.  The appeal must be sustained in part.

On April 5, 2012, respondent DSS filed a neglect petition against the student’s parents in Livingston County Family Court (“Family Court”).  At the time, the student resided with her parents and attended school in respondent York’s district.  By order dated October 26, 2012, Family Court placed the student with her aunt who lived within respondent Rochester’s district.  In January 2013, respondent DSS filed motion papers in Family Court seeking to modify the aforementioned order to have the student placed in foster care in the custody of respondent DSS.  On February 8, 2013, Family Court issued a temporary order[1] granting custody of the student to respondent DSS and the student was placed in a foster care home located within petitioner’s district.

By letter dated February 21, 2013, respondent DSS sent petitioner and respondent Rochester copies of the New York State Office of Children and Family Services School District Notification of Foster Child Placed in a Foster Family, Agency Boarding, or Group Home form (“DSS 2999 form”) which designated respondent Rochester as the district in which the child resided when the child entered foster care, or the district of origin.

By invoices dated March 20, 2014 and December 15, 2014, petitioner sought tuition reimbursement from respondent Rochester for the cost of educating the student.  Petitioner alleges, and respondent Rochester admits, that it did not remit payment to petitioner.  In January 2015, respondent Rochester’s senior accountant (“senior accountant”) contacted respondent DSS and disputed the school district’s designation as the district of origin.  By email dated February 6, 2015, the senior accountant forwarded a string of email correspondence between him and respondent DSS.  An email from a foster care supervisor indicated that respondent DSS erroneously used the student’s aunt’s Rochester address instead of the student’s parent’s York address in determining the district of origin for purposes of completing the DSS 2999 form.  The email attached an amended DSS 2999 form designating respondent York as the district of origin.[2]  By invoice dated February 11, 2015, petitioner sought tuition reimbursement for the cost of educating the student from respondent York. Petitioner alleges, and respondent York admits, that it did not remit payment to petitioner. 

By invoice dated March 1, 2016, petitioner sought tuition reimbursement from respondent York for the cost of educating the student for the full 2014-2015 school year, as well as a prorated amount for the 2015-2016 school year.  By letter dated March 23, 2016, respondent York notified petitioner that it was denying petitioner’s request for reimbursement. 

In April 2016, petitioner’s counsel spoke with respondent York’s counsel who informed him that respondent York disputed respondent DSS’s decision designating it the district of origin by letter dated May 1, 2015 and that it was awaiting a decision from respondent DSS.  By email dated May 5, 2016, respondent DSS’s counsel informed petitioner’s counsel that “it appears” that respondent Rochester is fiscally responsible for the cost of educating the student.  Petitioner alleges and respondent York admits that, as of the filing of this appeal, respondent DSS has not amended the DSS 2999 form to designate respondent Rochester as the district of origin. 

By invoice dated May 17, 2016, petitioner sought reimbursement for the cost of educating the student from respondent Rochester.  By email dated May 31, 2016, respondent Rochester’s senior accountant denied petitioner’s request for reimbursement and stated that it was not fiscally responsible for the student’s tuition.  This appeal ensued.

Petitioner argues that the student was residing within respondent Rochester’s district prior to her placement in foster care and that the original DSS 2999 form designated respondent Rochester as the district of origin.  Petitioner contends that because respondent DSS recently “informally affirmed this decision,” respondent Rochester is the district of origin for tuition reimbursement purposes.  Petitioner requests a determination that it is entitled to tuition reimbursement from respondent Rochester for the 2015-2016 school year in the amount of $25,788.00 and for future tuition costs incurred by petitioner in connection with the student. 

In the alternative, petitioner contends that the student’s last permanent residence prior to her placement in foster care was in respondent York’s district and that the amended DSS 2999 form, submitted by respondent DSS in April 2015, designated respondent York as the district of origin.  Therefore, petitioner requests a determination that it is entitled to tuition reimbursement from respondent York for the 2015-2016 school year in the amount of $25,788.00 and for future tuition costs incurred by petitioner in connection with the student. 

Finally, petitioner alleges that because respondent DSS has made “inconsistent and untimely determinations” and failed to revise the amended DSS 2999 form to reflect its most recent district of origin determination, it has failed to provide timely notice to the parties of its district of origin determination.  Therefore, petitioner requests that, during the pendency of this appeal, I assign financial responsibility to respondent DSS.

Respondent Rochester argues that petitioner has failed to state a cause of action against it and that any claims for tuition reimbursement for the 2012-2013 and 2013-2014 school years are untimely.     

Respondent York argues that the appeal is untimely because it was not commenced within 30 days of respondent York’s March 23, 2016 denial of tuition reimbursement.  Respondent York also argues that the appeal against respondent Rochester is untimely because respondent Rochester denied petitioner’s request for reimbursement on May 31, 2016, and this appeal was not commenced within 30 days of that denial. 

Respondent York further argues that it is not responsible for tuition reimbursement.  It contends that respondent Rochester is the correct district of origin because the student resided with her aunt within that district when respondent DSS took responsibility for the student.  Respondent York argues that respondent DSS conceded that respondent Rochester is the district of origin and is therefore responsible for petitioner’s request for tuition reimbursement for the 2015-2016 school year. 

First, I will address the procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Respondent Rochester argues that any claims for tuition reimbursement for the 2012-2013 and 2013-2014 school years are untimely.  However, in its request for relief herein, petitioner does not seek tuition reimbursement for those years.  Respondent York argues that the appeal is untimely as against it and respondent Rochester. 

This appeal was commenced on July 25, 2016. As previous Commissioner’s decisions have held, claims for foster care tuition payments pursuant to Education Law §3204(4)(a) relating to a particular school year become due at the completion of that school year, and an appeal need only be commenced within 30 days of the end of the school year to be timely (Appeal of the Board of Education of the Town of Webb Union Free School District, 40 Ed Dept Rep 449, Decision No. 14,524; Appeal of the Sole Trustee of the Hickory-South Mountain Common School District No. 1, 38 id. 577, Decision No. 14,097; Matter of Sanfilippo, 24 id. 81, Decision No. 11,323).  Petitioner seeks reimbursement for the 2015-2016 school year and commenced this appeal within 30 days of the end of the school year.  Therefore, I decline to dismiss the appeal as untimely.

Education Law §3202(4)(a) provides, in pertinent part:

[t]he cost of instruction of pupils placed in family homes at board by a social services district ... shall be borne by the school district in which each such pupil resided at the time the social services district ... assumed responsibility for the placement, support and maintenance of such pupil ... (emphasis added).

Therefore, the issue presented herein is identifying the student’s district of residence at the time respondent DSS assumed responsibility for her placement. 

“Residence” 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).

On the record before me, the presumption that the student was living with her parents at the time respondent DSS assumed responsibility for her placement, support and maintenance in February 2013 was clearly rebutted.  On April 5, 2012, respondent DSS petitioned Livingston County Family Court for an order determining that the student was “neglected” and removing her from the care of her parents.  According to respondent DSS’s petition, at the time, the student lived with her parents and attended school in respondent York’s district.  In its petition, respondent DSS identified the student’s aunt a possible “resource” but not as a foster parent or custodian.  On August 16, 2012, the student was adjudicated to be a “Neglected Child” within the meaning of the Family Court Act and placed in the custody of her aunt who resided in respondent Rochester’s district.

Article 10 of the New York Family Court Act (“Family Court Act”) addresses child protective proceedings.  Placement is specifically addressed in Family Court Act §1055, which provides an outline of the Family Court’s options for placement.  For example, the court may place the child in the custody of a relative, other suitable person, the local commissioner of social services or with other entities authorized to receive children as public charges.  Additionally, the Family Court can place a child in the custody of the local commissioner of social services and may direct such commissioner to have the child reside with a relative or other suitable person who has indicated a desire to become a foster parent for the child (Family Court Act §1055(a)[i]).

An order placing a child directly with a relative may not be granted unless the relative or other suitable person consents to the jurisdiction of the Family Court. The Family Court may put the person with whom the child has been directly placed under supervision of a child protective agency, social services official or duly authorized agency during the pendency of the proceeding (Family Court Act §1055(a)[ii]).

It appears from the orders, and a review of the record, that the student was placed with her aunt “under the supervision of the Department of Social Services” pursuant to Family Court Act §1055(a)(ii), and not placed in the custody of the local commissioner of social services with direction to such commissioner to have the child reside with a relative or other suitable person who has indicated a desire to become a foster parent for the child pursuant to Family Court Act §1055(a)(i).     

Further, the record contains no allegations that the student’s placement with her aunt was not intended to be a permanent residence or that her aunt did not exercise complete control over the student’s support and custody. The record indicates that, by Family Court order dated October 26, 2012, placement with the student’s aunt was continued indefinitely.  Therefore, from the Family Court’s initial placement of the student with her aunt, the student’s residence became that of her aunt in respondent Rochester’s district.    

By affidavit in support of a modification of an order of disposition dated January 17, 2013, a foster care senior case worker with respondent DSS cited a change in circumstances and requested that the student be removed from placement with her aunt and placed in the care, custody and guardianship of respondent DSS.  By court order entered on February 20, 2013, the student was placed in the custody of respondent DSS.  At that time, the student was residing within respondent Rochester’s district.

By letter dated February 21, 2013, respondent DSS designated respondent Rochester as the district in which the student resided when the student entered foster care, or the district of origin. Pursuant to Education Law §3202(4)(f)(ii), within ten days of its receipt of the designation, a board of education of a school district may submit to the public agency, in this case, respondent DSS, additional evidence to establish that it is not the student's district of residence.  The public agency then has five days from the submission of additional evidence to make a final determination.  

In the event such school district fails to submit additional evidence within such ten day period, the determination of the public agency shall be final and the notification provided pursuant to subparagraph (i) of this paragraph shall be deemed final notification of such determination (Education Law §3202(4)(f)[ii]).

The record before me indicates that respondent Rochester did not challenge the designation made by respondent DSS within the period prescribed in §3202(4)(f)(ii).  Therefore, the decision made by respondent DSS designating respondent Rochester as the district of origin is final.  Respondent DSS’s purported re-designation of respondent York was ultra vires.  However, while respondent DSS’s action did cause confusion, that is not grounds to find respondent DSS liable for the student’s tuition.  Education Law §3202(4)(f)(vi) does authorize the Commissioner to assign final responsibility to the public agency where it failed to make reasonable efforts to identify the residence of the child or failed to provide timely notice to the district or failed to render its determination in a timely manner.  In this case, respondent DSS made a timely determination in February 2013 that Rochester was the school district of origin and when Rochester failed to submit evidence to the contrary within 10 days, that determination became final by operation of law.[3]  At that point, respondent Rochester’s only recourse was to bring an appeal to the Commissioner within the 30 days, which it did not do.  Respondent DSS inappropriately attempted to modify its final determination made in 2013, but that does not authorize the Commissioner to shift fiscal responsibility to respondent DSS.

For the reasons outlined above, I find that respondent Rochester is the district of origin and therefore responsible for payment of the student’s tuition.    

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent Rochester pay petitioner $25,788.00 for tuition costs incurred by petitioner for educating the student during the 2015-2016 school year. 

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