Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Cairo-Durham Central School District regarding residency.

Decision No. 17,895

(August 6, 2020)

Honeywell Law Firm, PLLC, attorneys for respondent, Michael W. Gadomski, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Cairo-Durham Central School District (“respondent”) that her daughter (“the student”) is not eligible to attend the district’s schools tuition-free as a resident.  The appeal must be dismissed.

According to the record, petitioner resides outside of respondent’s district in Connecticut.  On or about March 25, 2020, the student began living with her maternal grandparents, who reside in respondent’s district.  Thereafter, petitioner attempted to register the student in respondent’s district by submitting a registration form dated March 27, 2020, on which she identified both herself and the grandparents as the student’s legal guardians.  Along with the registration form, petitioner submitted a document titled “Child Care Authorization,” also dated March 27, 2020, which was executed by petitioner and purportedly granted “temporary authority” to the grandparents to take care of the student, including providing and overseeing all medical, healthcare, schooling, and educational needs.  The authorization indicated that it would “remain effective until terminated” by petitioner.  The authorization also granted the student’s aunt “educational rights and authority to assist in making educational and medical decisions for [the student] ... to assist [the] grandparents[,] whose primary language is not English[,] and to provide advocacy as needed.”

By letter dated March 30, 2020, respondent’s director of special education and pupil personnel services (the “director”) determined that the student was not a resident of the district and not entitled to attend the district’s schools.  The letter explained,

[t]he childcare authorization submitted with [the student’s] enrollment forms does not constitute a total and permanent transfer of custody to the ... grandparents ... because [petitioner] retains the power to terminate the transfer.  Therefore, this temporary transfer of childcare authority is solely made to take advantage of [the district’s] schools and does not constitute a legally cognizable basis for establishing the child’s residency within our school district.

By email dated March 30, 2020, petitioner asked the director how she could enroll the student in respondent’s district “without giving up [her] rights as a mother.”  Petitioner subsequently sent respondent an updated “Child Care Authorization” dated March 31, 2020.  The updated authorization, which was executed by petitioner, purportedly granted the grandparents “the authority to have permanent custody and control” over the student.  Although the authorization no longer granted petitioner the authority to terminate the transfer, it retained the language giving the aunt certain “educational rights and authority to assist” the grandparents.  By email dated March 31, 2020, the director advised petitioner that the district had “made its determination regarding [the student’s] residence” and that petitioner could appeal the decision to the Commissioner of Education.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 28, 2020.

Petitioner argues that the student resides with the grandparents in respondent’s district “permanently” and should be entitled to attend its schools as a district resident.  Although petitioner identifies herself in the petition as the student’s “biological mother and custodial parent,” she subsequently asserts that she has “surrendered parental control” of the student to the grandparents, who “provide food, shelter, and clothing” to the student and “exercise control over [the student’s] activities and behavior.”  For relief, petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent asserts that its decision was not arbitrary or capricious because the record demonstrates that petitioner’s “actions do not reflect a good faith attempt to permanently transfer custody ... but rather ... an inappropriate effort ... to take advantage of the [d]istrict’s schools.”  Respondent notes that the grandparents have not been involved in either the application to register the student or this appeal.  Furthermore, respondent asserts that petitioner’s “claim of a transfer of custody” is “muddled” by the “coextensive authority” granted to the student’s aunt.

     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).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

On this record, petitioner has failed to meet her burden to prove that respondent’s determination was arbitrary and capricious.  Initially, it is undisputed that petitioner resides outside of the district.  Thus, for the student to be considered a resident of respondent’s district, petitioner must demonstrate that there has been a total, and presumably permanent, transfer of custody and control to a district resident.  Although petitioner purported to “permanent[ly]” transfer custody and control of the student to the grandparents in her March 31, 2020 “Child Care Authorization,” petitioner also delegated “educational rights and authority to assist” to the student’s aunt.

Both the March 27 and March 31, 2020 childcare authorizations that petitioner submitted were executed solely by petitioner.  Pursuant to Commissioner’s regulations, a board of education “may not require submission of a judicial custody order or an order of guardianship as a condition of enrollment” (8 NCYRR §100.2[y][3][i][c][2]).  Instead, the board

may accept an affidavit of the ... person(s) in parental relation indicating ... that they are the person(s) in parental relation to the child, over whom they have total and permanent custody and control, and describing how they obtained total and permanent custody and control, whether through guardianship or otherwise.

(8 NCYRR §100.2[y][3][i][c][2]).  Here, the authorizations submitted by petitioner do not constitute sufficient proof of residence under the regulations because they were executed unilaterally by petitioner, who purports to no longer have custody of the student, and who does not reside with the student.

Indeed, petitioner, rather than the grandparents, attempted to register the student in respondent’s district and commenced this appeal.  The grandparents are not parties to this appeal, nor is there any evidence in the record that the grandparents have communicated with the district.  Moreover, petitioner refers to herself in the petition as the student’s “custodial parent,” and she has not submitted any evidence from the grandparents to lend support to her claim that they exercise exclusive custody and control of the student.  On this record, therefore, I cannot find that respondent acted arbitrarily or capriciously in determining that the student is not a district resident.

While the appeal must be dismissed, petitioner retains the right to reapply for admission to the district on the student’s behalf in the future should circumstances change – such as a complete transfer of custody and control to the grandparents – and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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