Appeal of D.M. and J.D., on behalf of their niece and nephew, from action of the Board of Education of the North Babylon Union Free School District regarding residency.

Decision No. 18,031

(August 12, 2021)

Law Offices of Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the North Babylon Union Free School District (“respondent”) that their niece and nephew, S.H. and M.H. (collectively, “the students”), are not district residents.  The appeal must be dismissed.

On November 2, 2020, petitioner J.D. attempted to register the students in respondent’s district.  On November 9, 2020, respondent convened a hearing, presided over by the district’s director of student data services (“director”), to determine the students’ residency.  Petitioner J.D. attended the hearing and testified, among other things, that:

• she and her husband are district residents;
• the students lived at their residence for a year and a half;
• the majority of the students’ belongings are at petitioners’ home;
• the students’ parents were in the process of separating and lived at separate locations, both of which are located outside of respondent’s district;

• the students generally spent weekends at one of their parents’ homes;
• petitioners and the students’ parents share financial responsibility for the children;
• the parents claim the students as dependents on their tax returns;
• the parents make all educational decisions on behalf of  the students; and
• the students are included on one or both of their parents’ health insurance plans.

In a written decision dated November 9, 2020, the director concluded that the parents had not transferred custody and control of the students to petitioner J.D.  This appeal ensued.  Petitioners’ request for interim relief was denied on December 21, 2020.

Petitioners contend that the students are district residents.  Petitioners assert that the students do not live at any other address and that they are the primary care givers for the students.  For relief, petitioners seek a determination that the students are district residents entitled to attend respondent’s schools.

Respondent asserts that this appeal must be dismissed for improper service.  On the merits, respondent argues that its determination is supported by the evidence adduced at the hearing.

With respect to service of the petition, section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

At the time this appeal was commenced, section 275.8 (b) of the Commissioner’s regulations allowed petitioners to effectuate alternative service on a school district in the following manner:

(1) by mailing the petition, notice of petition and all supporting papers by first class mail in an envelope bearing the legend “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to the attention of the district clerk and superintendent of schools ...; and (2) on the same date as the mailing, emailing the petition, notice of petition and all supporting papers under the subject heading “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to both the district clerk and superintendent of schools .... Service shall be deemed complete upon completion of both steps identified above (8 NYCRR 275.8 [f]).[1]

Respondents argue that petitioners failed to comply with 8 NYCRR 275.8 (f) insofar as the copy of the petition served by mail was addressed to the school generally, not to the district clerk, and the outside of the envelope did not include the phrase “Appeal to the Commissioner of Education.” 

I decline to dismiss the appeal for lack of personal service.  Although respondent has identified two instances of technical noncompliance, it has not identified any prejudice arising therefrom.  The overall intent of the amendment to 8 NYCRR 275.8 (f) was “to address numerous issues resulting from the interruptions caused by the COVID-19 crisis.”  As such, I find that it is within the spirit of the amendment to permit alternative service under the circumstances (see generally Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001; Appeal of Megerell and Yager, 60 id., Decision No. 17,996).

Turning to the other procedural issue, petitioners submit a notarized statement, executed by petitioners and the students’ parents, that purports to indefinitely appoint petitioners as the guardians for the students.  This document was generated on December 5, 2020, shortly after respondent issued its residency determination.  Issues not raised before respondent and presented for its consideration and decision may generally not be raised for the first time in an appeal to the Commissioner under Education Law § 310 (see e.g. Appeal of M.S., 59 Ed Dept Rep, Decision No. 17,668; Appeal of J.M. and R.C., 58 id., Decision No. 17,470; Appeal of J.H., 52 id., Decision No. 16,376).  However, respondent has had ample opportunity to review and respond to this exhibit and does not request that the appeal be remanded to consider this document (see Appeal of M.M., 58 Ed Dept Rep, Decision No. 17,645; Appeal of Strickland, 56 id., Decision No. 17,023).  Therefore, I have accepted this document into the record.

Turning to the merits, Education Law § 3202 (1) provides, in pertinent part, 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 maintained in the district in which such person resides without the payment of tuition.”  The purpose of this provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

The presumption that a child resides with his or her parent or legal guardian can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  Although a formal transfer of custody and control through a guardianship or Family Court proceeding is not required to establish a child’s residency for purposes of Education Law § 3202, the evidence must demonstrate that the child’s permanent residence is within the district and that the individual exercising custody and control of the child has full authority and responsibility with respect to the child’s support and care (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Generally, if a child’s parent or legal guardian continues to provide financial support for the child’s room, board, clothing, and other necessities, the parent or guardian has not relinquished custody and control (see Catlin v Sobol, 77 NY2d 552 [1991]; Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where the child’s parent or legal guardian retains decision-making authority over important matters such as the child’s medical care or education, a total transfer of custody and control has not occurred (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin, 77 NY2d at 562).

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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Here, petitioners have failed to meet their burden of proving a total transfer of custody and control to petitioner J.D.  The record reflects that the students’ parents retain significant legal authority over the students by, for example, making all educational decisions on their behalf and claiming them as dependents on their tax returns (see Appeals of P.B., 59 Ed Dept Rep, Decision No. 17,698; Appeals of T.M., 58 Ed Dept Rep, Decision No. 17,496).  Although the notarized statement purports to transfer total custody and control of the students to petitioners, petitioner J.D. acknowledged at the residency hearing that the students’ parents bear at least some financial responsibility for the students, provide them with health insurance coverage, and make all educational decisions on their behalf.  As such, petitioners have not demonstrated a clear legal right to the relief requested and the appeal must be dismissed (see Appeals of P.B., 59 Ed Dept Rep, Decision No. 17,698; Appeals of T.M., 58 Ed Dept Rep, Decision No. 17,496).

While the appeal must be dismissed, I note that petitioners remain free to seek the assistance of Family Court in effectuating a transfer of custody and control of the students.  Petitioners also retain the right to reapply for admission to respondent’s schools on the students’ behalf at any time, should circumstances change, and to present any additional information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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