Decision No. 13,973

(July 15, 1998)

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Shenendehowa Central School District ("respondent") that Pamela Fuller was not a resident of the district and respondent's refusal to admit her as a student. The appeal must be remanded.

Prior to January 19, 1997, Pamela Fuller lived with her mother in Stillwater, New York, outside respondent's district, and apparently attended Stillwater schools. (Pamela's father is deceased). In January 1997, Pamela moved to the home of petitioner and his father, located in respondent's district, but apparently continued to attend Stillwater schools through June 1997. On August 22, 1997, petitioner and Pamela sought her admission as a student in the Shenendehowa High School. Documents in the record indicate that at that time petitioner did not claim to be Pamela's legal guardian or custodian, and did not claim any other form of legal control over her. The documents submitted at that time indicated that Pamela's mother intended to claim her as a dependent on her income tax return. The application also indicated that both petitioner and Pamela's mother would authorize medical treatment if necessary. An affidavit executed by Pamela's mother at that time stated that she would continue to be responsible for some medical treatment, and that Pamela would reside with petitioner until she completed her senior year of high school. Based upon this information, respondent issued a preliminary decision that Pamela was not entitled to attend respondent's school because she was not a resident of the district, and that her mother had not completely relinquished custody and control of Pamela.

On September 23, 1997 petitioner, Pamela, and Pamela's mother met with David A. Burpee, respondent's Director of Staff Services. Petitioner offered certain documentation which petitioner believed would support Pamela's claim to attend respondent's school. According to Mr. Burpee's affidavit, at the meeting Pamela and her mother stated that they did not always get along, but neither stated that Pamela had been "kicked out" of her mother's home. Again, according to Mr. Burpee, Pamela's mother specifically stated that she did not consider Pamela to be emancipated, and that she had not signed any papers emancipating her. Following the September 23 meeting, petitioner submitted additional documentation dealing with Social Service benefits, medical benefits, and a document from the Social Security Administration indicating that monthly payments were being made to Pamela's mother for Pamela's benefit based upon Pamela's father's death.

Upon consideration of all these documents and discussions, on September 25 Mr. Burpee issued a decision that Pamela was not a resident of the district and was not entitled to attend district schools. He determined that Pamela's mother did not live in the district, and had not fully surrendered custody and control to petitioner. The determination further noted that Pamela's mother would continue to be responsible for some medical treatment and would be a person to contact to make decisions in a medical emergency. He further noted that Pamela's Social Security check was made payable to Pamela's mother as custodian.

On October 9, 1997, Pamela attempted to commence an appeal challenging this determination. Because Pamela was not yet 18 years old at that time, my Office of Counsel rejected her petition, but in a letter dated October 24, 1997, stated that if a corrected petition were served within two weeks of the date of that letter, the appeal would be deemed to have been commenced on the date of the original service. On November 12, 1997, a new petition was served, in which petitioner Christopher Yattaw brought the appeal on Pamela's behalf and sought a stay. Respondent opposed the stay both on the merits and because the second petition had been served more than two weeks after October 24. I issued a stay on November 20, 1997, directing that respondent admit Pamela to its schools pending the resolution of this appeal.

After a careful review of the record, and a comparison of the first petition dated October 9, 1997, with the current petition dated November 12, 1997, I have concluded that this matter should be remanded to respondent for full consideration pursuant to 8 NYCRR "100.2(y).

Respondent's determination of September 25, 1997, was based on certain documents that were presented by petitioner at and after the meeting of September 23, 1997. Respondent's determination was based on the fact that Pamela's mother was not a resident of the district, and that the proof submitted was not sufficient to overcome the presumption that Pamela legally resided with her mother. The decision discusses the inadequate surrender of custody and control and certain inconsistencies in documents. It specifically points to the parent affidavit executed by Pamela's mother, and cites passages where her mother continues to be responsible for some medical treatment and medical decision making. The determination points out that Pamela's Social Security checks are made payable to her mother as custodian, and that the checks are deposited by her mother into a bank account that she owns and controls. While there is some very brief mention of the question of emancipation, Mr. Burpee simply indicates that Pamela's mother specifically stated that Pamela was not emancipated. The original petition challenging that determination stated that Pamela is "supporting herself" through monthly Social Security payments, but it is obvious that at that time Pamela's mother was still the payee. The petition did not allege that Pamela was an emancipated minor. Because the original petition was rejected, respondent was not required to serve an answer.

The second, and current, petition, dated November 12, 1997, contains some subtle changes. This petition specifically claims, for the first time, that Pamela is an emancipated minor, and it attaches a document from the Social Security Administration, dated November 5, 1997, indicating that Pamela's checks will be paid to "Christopher Yattaw for Pamela J. Fuller." The petition also attaches new affidavits by Pamela and her mother, both executed November 12, 1997. Obviously, these documents were not available for consideration by Mr. Burpee on September 25. Respondent's papers opposing relief in this appeal deal very briefly with these new affidavits, but with respect to the new Social Security document, respondent makes the following comment in an affidavit of Mr. Burpee:

Under these circumstances, the issue that needs to be resolved has subtly shifted from that of the rebuttable presumption that Pamela legally resides with her mother, to the issue of whether or not Pamela has presented adequate evidence of emancipation that would qualify her to attend the schools of respondent's district. Rather than attempt to review a determination which did not consider all the facts now available, it seems more prudent to remand this matter to respondent for a determination on the presently available evidence.

THE MATTER IS REMANDED.

IT IS ORDERED that, within 30 days of the date of this order, respondent make a new determination as to whether Pamela Fuller is entitled to attend the schools of the district, and that prior to making such determination petitioner shall be afforded a full opportunity to submit any and all information concerning Pamela Fuller's right to attend schools in the district.

END OF FILE