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Decision No. 13,822

Appeal of FRANK and MEREDITH BOCEK, on behalf of THUY HA PHAM, from action of the Board of Education of the Owego-Apalachin Central School District regarding residency.

Decision No. 13,822

(August 21, 1997)

Hogan & Sarzynski, LLP, attorneys for respondent, John P. Lynch, Esq., of counsel

CATE, Commissioner.--Petitioners, on behalf of Thuy Ha Pham, challenge the determination of the Board of Education of the Owego-Apalachin Central School District ("respondent") that Thuy Ha is not a district resident for the purposes of attending its schools tuition-free. The appeal must be sustained.

According to petitioners, Thuy Ha and her mother immigrated from Vietnam to Owego, New York in 1987. In 1990, they moved across the street from petitioners and a friendship between the two families developed. In July 1995, Thuy Ha and her mother moved to Sioux City, Iowa, and in July 1996, they moved to Philadelphia to live with another daughter. In August 1996, Thuy Ha moved in with petitioners and on August 26, 1996, Thuy Ha, then age 16, requested admission to the Owego-Apalachin School District. By letter dated September 10, 1996, respondent's Director of Special Services notified Thuy Ha that she was not entitled to attend district schools as a resident because she had not overcome the presumption of parental residency and because guardianship had not been established by petitioners. This appeal ensued.

As a preliminary matter, respondent contends that petitioners lack standing to bring this appeal. Indeed, an individual may not maintain an appeal pursuant to Education Law ' 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Craft, 36 Ed Dept Rep 314). In this case, petitioners are residents of respondent’s school district. As such, children residing in their household for whom the presumption of parental residence has been rebutted may attend district schools tuition-free. Petitioners allege that respondent has abrogated that right, and I therefore find that petitioners may bring an appeal to challenge respondent’s action.

As to the merits, petitioners contend that Thuy Ha has lived with them since August 10, 1996 and intends to live with them for the next seven years, at which point she will be 23 years of age. They contend that Thuy Ha is living with them for several reasons. Specifically, they maintain that they: are in a financial position to provide Thuy Ha with more opportunities in life; provide more effective discipline and supervision than her mother; provide a safer and more loving environment; have better communication with her than her mother; foster an educational environment and can assist her with college; provide family activities such as church and recreation; teach her the English language and American culture while respecting her Vietnamese heritage; and provide better medical care. Additionally, petitioners maintain that Thuy Ha's mother can barely afford to support her, and her father's whereabouts are "unknown in Vietnam."

Petitioners argue that they fully support Thuy Ha, but that they have applied for benefits from Tioga County to which she is entitled. They claim that her mother relinquished benefits for Thuy Ha that she was receiving from Philadelphia Social Services, that her mother no longer receives cash assistance, and that she provides no financial support for Thuy Ha. In support of that contention, petitioners provide a copy of an their application dated September 24, 1996 for Thuy Ha’s public assistance benefits and a copy of her mother’s notice of discontinued benefits effective October 1, 1996.

Petitioners further contend that they exercise control over Thuy Ha's activities and behavior and that her mother has surrendered parental control to them. Petitioners provide a notarized form, apparently provided by respondent’s school district, purportedly transferring guardianship to petitioners, signed by Thuy Ha’s mother and petitioners. Petitioners state that Thuy Ha intends to visit her mother in Philadelphia every three months.

Respondent contends that the assignment of guardianship can be revoked at any time and therefore does not indicate a permanent surrender of custody and control which is required to overcome the presumption of parental residence. Respondent provides a copy of a 1995 New York State income tax return for Thuy Ha's mother which lists Thuy Ha as a dependent. Respondent also provides a copy of its residency questionnaire, stamped "received Sep 9, 1996," and signed by petitioners, Thuy Ha and her mother. In response to the questions "Has the student received financial or other support from his parents during the past year?" and "If so, state the dates, approximate dollar amount or other support received each week," the form indicates "$125.00 for mother and child." Respondent also notes that Thuy Ha "was a student at West High School, Sioux City, Iowa, which was her mother’s address."

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279; Appeal of Garretson, supra). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Tunstall, 27 Ed Dept Rep 144), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Garretson, supra; Appeal of Pernell, 30 Ed Dept Rep 380). Where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Ritter, 31 Ed Dept Rep 24). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Menci, 35 Ed Dept Rep 61; Matter of Staulcup, 20 id. 11) or the hardships of single parenting (Appeal of McMullan, 29 Ed Dept Rep 310). In such cases, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Lebron, 35 Ed Dept Rep 359; Appeal of McMullen, supra).

The record indicates that beginning in August 1996, petitioners have provided financial support for all of Thuy Ha's needs and have exercised full authority and responsibility over her activities and behavior. Petitioners articulate a long list of reasons that Thuy Ha's residence has been changed, and based on this list, I must conclude that this is not a case in which the student's residence has been changed merely to take advantage of the educational program of another school district.

Moreover, I find respondent's determination to be arbitrary, capricious and unreasonable. Respondent argues that during the year prior to the time Thuy Ha applied for admission to respondent’s school district, she lived with her mother in Iowa, received benefits that her mother had applied for on their behalf, and was claimed by her mother as a dependent on her 1995 income tax return. I do not find any of these undisputed facts about events prior to August 1996 relevant to the issue of whether Thuy Ha became a district resident in August 1996.

Under these circumstances, I find Thuy Ha's residence to be with petitioners. Accordingly, respondent’s determination will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Thuy Ha Pham to attend school in the Owego-Apalachin Central School District without the payment of tuition.

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