Appeal of P.H., on behalf of C.T., from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Appeal of P.H., on behalf of J.T., from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 17,698

(July 16, 2019)

Keane & Beane, P.C., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

ELIA., Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the City School District of the City of White Plains (“respondent”) that C.T. and J.T. (“the students”) are not district residents and, therefore, are not entitled to attend the district’s schools tuition-free.  Because these appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

The record reflects that, prior to the events leading to these appeals, the students had resided with their father within respondent’s district and had been enrolled in respondent’s schools.

In December 2018, after it came to respondent’s attention that the students’ father had moved from his in-district address, he was asked to provide respondent with his current address.

In January 2019, the students’ father acknowledged to respondent that he had moved outside of respondent’s district and he submitted Care, Custody and Control Applications (“applications”) dated January 7, 2019,  asserting that custody and control of the students had been transferred to petitioner.  The applications  indicate that petitioner resides in respondent’s district and the students’ father resides outside the district in Yonkers.  The applications also indicate that the students would reside with petitioner for three years, and that the students’ father would provide them with food, clothing and medical insurance, make medical decisions on their behalf and claim them as dependents for income tax purposes.  The applications also state that the students’ father and petitioner would make educational decisions on behalf of the students, that there was no court-ordered guardianship arrangement and that petitioner would have temporary custody of the students for educational purposes until the students finished high school.

By letter dated January 8, 2019, respondent’s superintendent of schools notified petitioner of his determination that the students were not district residents and, therefore, not entitled to attend respondent’s schools.  The superintendent stated that his determination was based on the fact that there had not been a complete and permanent transfer of care, custody and control of the students from their father to petitioner.  The superintendent indicated that the students would be excluded from respondent’s schools effective February 1, 2019.  These appeals ensued. Petitioner’s requests for interim relief were denied on February 19, 2019.

Petitioner maintains that she is the students’ guardian and that she and the students’ father support them.  Petitioner states that the students have frequent contact with their father to ensure that they receive everything they need.  Petitioner maintains that the students do not reside with their father because his residence “is not properly conditioned for the [students] to live in.”

Respondent asserts that the appeals must be dismissed because petitioner failed to effectuate proper service on respondent.    Respondent further contends that the students’ father did not make a complete and permanent transfer of the care, custody and control of the students to petitioner, and that its residency determination was rationally based and reasonable.

I must first address several procedural matters.  Respondent did not submit timely answers in these appeals, but requests permission to submit late answers pursuant to §275.13 of the Commissioner’s regulations. Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  The date upon which personal service was made upon a respondent shall be excluded in the computation of the 20-day period (8 NYCRR §275.13).  When the 20-day period ends on a Saturday, Sunday or public holiday, the answer may be served on the next succeeding business day (8 NYCRR §275.8[b]).

Respondent admits that it did not timely serve its answers, but explains that the failure to serve its answers within the time prescribed by 8 NYCRR §275.13(a) was due to petitioner’s improper service of the notices of petition and petitions.  Despite petitioner’s failure to properly effectuate service of the petitions on respondent as stated herein, respondent received the notices of petition and petitions from my Office of Counsel on February 11, 2019, leaving ample time for respondent’s counsel to request an extension of time to answer pursuant to 8 NYCRR §276.3(a) or to serve its answers by February 20, 2019, 20 days after the petitions were purportedly served.  Respondent’s counsel provides no explanation for his failure to do so.  Even though respondent served its answers on March 4, 2019, which would be within the period prescribed by §275.13 if it were measured from respondent’s receipt of the petitions from my Office of Counsel, the 20-day period is measured from the purported date of service reflected in petitioner’s affidavits of service and respondent must furnish a sufficient excuse for the delay (see Appeal of C.C., 53 Ed Dept Rep, Decision No. 16,526), which it has not done.  Accordingly, I have not accepted respondent’s answers and the factual allegations set forth in the petitions 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). 

However, respondent submitted timely affidavits from respondent’s superintendent and district clerk in

opposition to petitioner’s requests for interim relief, and these affidavits are properly part of the record before me.  Therefore, I have considered these affidavits to the extent that they are responsive to the allegations contained in the petitions (see Appeal of C.C., 53 Ed Dept Rep, Decision No. 16,526; Appeal of Brarens, et al., 51 id., Decision No. 16,317).

The appeals must be dismissed for improper service.  Respondent notes that petitioner’s affidavits of service state that service was made on January 31, 2019 on Angello J. Rodriguez, who is identified as a “Notary Public,” and is the same notary who notarized petitioner’s affidavits of service.  Respondent’s superintendent of schools attests in his affidavit that Mr. Rodriguez is not an employee of the district nor is he authorized to accept service on behalf of the district.  Respondent also asserts that petitioner did not effectuate personal service on respondent in accordance with §275.8 of the Commissioner’s regulations, and that respondent only received notice of these proceedings from my Office of Counsel on February 11, 2019.

Petitioner did not rebut respondent’s claim of improper service and has produced no evidence establishing that proper service was effectuated.  Consequently, because service is defective and jurisdiction over respondent is lacking, the appeals must be dismissed (Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,214; Appeal of Khan, 51 id., Decision No. 16,287; Appeal of J.L., 47 id. 151, Decision No. 15,654).

Even if the appeals were not dismissed on procedural grounds, they would be dismissed on 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

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 M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

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 Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726).

In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, I cannot find that there has been a total and permanent transfer of custody and control of the students from the students’ father to petitioner. The Care, Custody and Control Applications clearly indicate that the transfer of custody is temporary and that the students’ father continues to provide financial support, retains control over medical decisions, and shares control over educational decisions with petitioner.  Accordingly, petitioner has not established that respondent’s January 8, 2019 residency determinations, which were based on its finding that there was no total and permanent transfer of custody and control of the students to petitioner, were arbitrary or capricious.

THE APPEALS ARE DISMISSED.

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