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Decision No. 13,986

Appeal of MICHAEL AGONEY and CATHERINE COOK, on behalf of MICHAEL AGONEY, from action of the Board of Education of the Peru Central School District regarding admission to school.

Decision No. 13,986

(August 17, 1998)

Rural Law Center of New York, Inc., attorney for petitioners, Omshanti Parnes, Esq., of counsel

Stafford, Trombley, Purcell, Owens & Curtin, P.C., attorneys for respondent, Dennis D. Curtin, Esq., of counsel

CATE, Acting Commissioner.--Petitioners challenge the determination of the Peru Central School District ("respondent" or "district") that Michael Agoney is not a resident of the district and respondent's refusal to admit him as a student. The appeal must be remanded.

Petitioner Catherine Cook, a district resident, is the maternal step-grandmother of Michael Agoney. Michael lived with his mother in the district until March 1997, when he moved in with his father and stepfamily, who reside in the Saranac Central School District ("Saranac"). After Michael left, his mother and her family moved out of the district. Michael attended 9th grade in Saranac until February 27, 1998, when he had an altercation with his father. According to petitioners, Michael’s father told him not to come back. On March 6, 1998, Michael moved in with petitioner Cook and her husband, Michael’s maternal grandfather. During the week of March 8, Michael attempted to register at Peru High School. Michael spoke with Stephen J. Tolosky, the assistant principal of Peru Junior-Senior High School, who allegedly told him he could not attend Peru Central High School unless his grandparents had full custody or he was emancipated. Michael attempted to speak to the school principal but apparently never reached her.

On March 13, 1998, Michael and his father met at a counseling center to determine where Michael was going to live. Michael and his father apparently almost came to blows, after which his father stated he wanted nothing more to do with Michael. Petitioner Cook went to Michael’s father’s house on Sunday, March 15, 1998, to remove Michael’s things, which were already packed up. On Monday, March 16, after petitioner Cook learned that Michael’s father had terminated his status as representative payee for Michael’s Social Security benefits, as he had threatened to do at the March 13 meeting, she applied as Michael’s representative payee.

The following day, March 17, 1998, Michael and petitioner Cook met with Mr. Tolosky, who rejected petitioner’s Social Security document as sufficient proof of her custody status to register Michael. Mr. Tolosky allegedly informed them that in order to enroll, Michael could not have any ties to his parents. He stated that Michael would have to attend Saranac High School, where his father lived, but that he might be able to help with transportation. He suggested that petitioner Cook contact County Social Services about obtaining custody of Michael. Upon contacting Saranac High School, petitioner Cook learned from the principal there that Michael’s father had withdrawn him from school because he was no longer living in the Saranac District. Therefore, Michael could not attend school in Saranac without payment of tuition. This appeal ensued. I granted petitioner’s request for interim relief on April 1, 1998, directing respondent to admit Michael to the schools of the Peru Central School District, pending the outcome of this appeal.

Petitioner Cook asserts that she was never informed that she would need to establish that Michael is in her custody and control to attend school in the district; that she could obtain sworn statements to establish that Michael was in her custody and control; or that she could speak to anyone else in the district about the situation. Furthermore, she states that she never received a written determination from any school or district official. She maintains that Michael is living with her, has nowhere else to live, and that she is willing to assume his full custody and control.

Respondent contends that Michael is a resident of the Saranac Central School District because both his mother and father reside there. Respondent also asserts that Michael and petitioner were informed that he could not attend school in the district unless he was emancipated or his parents relinquished custody of him to guardians in the district. Respondent maintains that petitioner provided no such proof. Respondent admits that no written determination was issued, but claims a residency determination could not be made because petitioner never completed custodial and parental affidavits provided to her.

Initially, I note that Michael is under the age of 18. A person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law "310 (Appeal of Reynolds, 37 Ed Dept Rep 58; Appeal of a Child with a Handicapping Condition, 32 id. 43). However, since Catherine Cook is over 18 and is also a petitioner, I will not dismiss the appeal on that basis.

Turning now to 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 Keenan, 36 Ed Dept Rep 6; Appeal of Brutcher, 33 id. 56). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Keenan, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (Appeal of McMullan, 29 Ed Dept Rep 310). 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 Brutcher, supra; 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 Gilbert, 36 Ed Dept Rep 19; Appeal of O’Malley, 35 id. 550; Appeal of Aquila, 31 id. 93; Appeal of Garretson, supra). Moreover, 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; Appeal of McMullan, supra).

Respondent asserts that Michael was last residing with his father outside the district in Saranac and there is no indication that he has transferred custody of Michael. Accordingly, Michael should attend school in Saranac. However, while the record contains no affidavit from Michael’s father, the facts indicate that he withdrew Michael from Saranac, terminated his status as representative payee for Michael’s Social Security benefits, and packed all Michael’s belongings so that they could be removed.

Respondent also asserts that Michael’s mother lives in Saranac. However, Michael’s mother asserts in an affidavit submitted with petitioner’s reply that when Michael moved in with his father in March 1997, she then moved in May 1997 from the district to West Chazy, New York in the Beekmantown School District. She avers that Michael is in the custody and control of his grandparents who have assumed "responsibility for his daily needs, obtaining necessary and emergency medical care and for management of his Supplemental Security Income and their own funds." She also avers that she gave up custody of Michael to his father in March 1997 after consultation with Michael’s doctors and counselors. She asserts that Michael could not continue to reside with her and her family (which includes Michael’s stepfather, sister and half-brother) because she could no longer control Michael and was afraid for his safety and the safety of the other children at home.

At the time of the appeal, petitioner had not submitted custodial or parental affidavits to respondent to review. It is unclear whether this was deliberate, as respondent asserts, or due to a lack of understanding, as petitioner asserts. Respondent also did not have Michael’s mother’s affidavit, which contains additional facts about his living status and alludes to custody and support arrangements with the father. Under these circumstances, it seems prudent to remand this matter to respondent for a full and proper determination on all the available evidence, rather than to attempt a premature review of an incomplete determination that did not include all facts and circumstances now available (Appeal of Yattaw, Decision #13973, dated July 15, 1998, 38 Ed Dept Rep ____). This remand presumes that petitioner still desires to enroll Michael in the Peru Central School District, in which case petitioner should avail herself of the opportunity to provide complete information to respondent.

Petitioner also requests that I order the school district to desist from engaging in a policy that keeps students from attending school without providing effective notice and an opportunity to be heard on their residency status. However, the Commissioner does not issue declaratory opinions (Appeal of Lawson, 36 Ed Dept Rep 450).

THE APPEAL IS REMANDED.

IT IS ORDERED that, within 21 days of the date of this order, respondent hold a hearing pursuant to 8 NYCRR "100.2(y) to determine whether Michael Agoney is a resident and entitled to attend the schools of the Peru Central School District, and that, prior to making its determination, petitioner shall be afforded a full opportunity to submit any and all information concerning Michael’s right to attend school in the district.

IT IS FURTHER ORDERED that respondent permit Michael to remain enrolled in the schools of the Peru Central School District until respondent issues a residency determination.

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