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Decision No. 14,206

Appeal of DEIDRE BURDI, on behalf of L.P., from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 14,206

(August 31, 1999)

Davis and Davis, attorneys for petitioner, Jordon S. Davis, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Pine Bush Central School District ("respondent") that her niece, L.P., is not a district resident entitled to attend its schools tuition-free. The appeal must be sustained.

Prior to the incidents that led to this appeal, L.P., now age 16, lived with her parents and siblings in New Fairfield, Connecticut where she attended public school. According to petitioner, beginning in the fall of 1997, L.P.'s relationship with her parents began to deteriorate. Allegedly, her parents were concerned that her boyfriend and his friends were having a negative influence on L.P. L.P. and her parents argued frequently, and she twice ran away from home. In January 1998, L.P.'s parents transferred her to a private Catholic high school, allegedly to separate her from her friends. Petitioner contends that, beginning in January 1998, she and her husband offered to take L.P. into their home, but that her parents declined because they did not want to disrupt petitioner's family.

On or about February 7, 1998, L.P.'s parents allegedly overheard her planning with a friend to attend a party that night at which they would drink alcohol and use drugs. That day, petitioner and her husband picked L.P. up and took her to their home in Middletown, New York, where, petitioner alleges, L.P. has resided since. L.P.'s parents signed a short statement giving petitioner and her husband permission "to act as guardians . . . to enroll her in Pine Bush school and to take her for emergency medical care when needed."

Three days later, on February 10, 1998, petitioner attempted to register L.P. at Pine Bush High School. They were told that the Director of Guidance, Richard J. Reich, was on vacation until February 17, 1998, and were given affidavit forms to complete.

On February 18, 1998, Mr. Reich held a residency hearing. At the hearing, Mr. Reich refused to accept the February 7, 1998 statement signed by L.P.'s parents, purportedly giving petitioner and her husband permission to act as guardians. Petitioner submitted an affidavit form that she had completed, as well as forms completed by L.P.'s parents. In answer to the question, "Are you the custodial parents?" L.P.'s parents had responded in the negative. Mr. Reich told petitioner that L.P.'s parents had answered the question incorrectly, and directed petitioner to have the error corrected. In response, L.P.'s parents signed and faxed a statement to the effect that they were L.P.'s legal custodians.

By letter dated February 19, 1998, Mr. Reich informed petitioner that L.P. was not a district resident and could not attend Pine Bush High School. The letter stated:

[C.P.] and [B.P.] have not given up care, custody and control of their daughter [L.P.]. In addition, [L.P.] is currently with you to get away from friends and negative influences, and to get her to "...improve her grades and tow the line." As such, the purported transfer of care, custody and control was meant to give L.P. an education in this district.

According to petitioner, L.P. applied to a Catholic school in the area, but was rejected because of her grades. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on March 19, 1998.

On March 10, 1998, the date this appeal was commenced, L.P.'s parents, petitioner and her husband signed a "Voluntary Guardianship Agreement," which stated that L.P.'s parents "unequivocally and completely" surrender custody and control of L.P. Petitioner and her husband agreed L.P. would reside with them until the age of 18 and that they would assume financial responsibility for her, provide for her needs and be responsible for her activities and behavior. In cases where a new agreement has been entered into after a residency hearing, I will, when appropriate, remand the issue to the district for a new hearing in light of the changed circumstances (see, Appeal of a Student with a Disability, 36 Ed Dept Rep 81, Decision No. 13,664). However, in this case, respondent's hearing officer, Mr. Reich, states in his affidavit that the agreement would not change his determination. Therefore, I will not remand.

Respondent contends that, based on the information available, the determination of the hearing officer was not arbitrary, capricious or unreasonable. It argues that L.P.'s parents have failed to permanently transfer L.P.'s care, custody and control. Finally, respondent claims that petitioner has failed to state a cause of action upon which relief can be granted.

With regard to respondent's claim that petitioner fails to state a claim upon which relief can be granted, Section 275.10 of the Commissioner's regulations requires a petition to contain a claim showing that petitioner is entitled to relief, and a demand for the relief, and must be sufficiently clear to advise respondent of the nature of petitioner's claim and the act(s) complained of. Petitioner's claims against respondent and the relief requested are apparent and respondent has addressed them in its answer. Therefore, I will not dismiss this appeal for failure to state a claim.

Respondent contends that its determination was not arbitrary, capricious or unreasonable. I disagree. Section 100.2(y) of the Commissioner's regulations sets forth the procedures to be followed by a board of education in determining the residency of a student, including notification, an opportunity to submit information and a determination by the board or its designee. This process, intended to protect the due process rights of the student, is predicated upon the residency determination being made by an impartial hearing officer. It is his or her role to make an objective decision based on the weight of the evidence and the prevailing law. I find that respondent failed to weigh the evidence presented and based its conclusion on a misinterpretation of the law.

The record indicates that the hearing officer in this case was not impartial, but instead operated under a predetermination. For example, the hearing officer refused to accept the February 7, 1999 statement because "at the time of the hearing [he] viewed the parents as still being custodial parents." Furthermore, he told petitioner that L.P.'s parents' affidavits were not consistent with his understanding of the situation and requested that they change their statements.

The record also indicates that the hearing officer based his judgment on an erroneous interpretation of the law. Respondent indicates that the fact that L.P. maintains contact with her parents and that she moved due to family conflict support his conclusion that she is not a district resident.

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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151, Decision No. 12,787). 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, Decision No. 12,729; Matter of Van-Curran and Knop, 18 id. 523, Decision No. 9950). Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Garretson, supra; Appeal of Aquila, 31 Ed Dept Rep 93, Decision No. 12,581; Matter of Delgado, 24 id. 279, Decision No. 11,394). 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, Decision No. 11,899), 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, Decision No. 12,502).

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 Cron, 38 Ed Dept Rep 149, Decision No. 14,075; Appeal of a Student with a Disability, 37 id. 29, Decision No. 13,796; Appeal of Brutcher, 33 id. 233, Decision No. 12,973). 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, Decision No. 13,465; Matter of Staulcup, 20 id. 11, Decision No. 10,292) or the hardships of single parenting (Appeal of McMullan, 29 Ed Dept Rep 310, Decision No. 12,304). 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, Decision No. 13,570; Appeal of McMullan, supra).

The weight of the evidence in the record before me indicates that L.P. is a district resident. According to the record, L.P. has lived with petitioner and her family since February 1998. Petitioner maintains that she and her husband exercise full authority and responsibility for all decisions regarding L.P.'s health, education and welfare and total control over her behavior and activities. She contends that they provide for all of L.P.'s financial, disciplinary, religious, educational, cultural, recreational and medical needs. The record indicates that L.P. moved due to family conflict, not for the purpose of attending respondent's schools.

Respondent points to certain facts and argues that L.P.'s parents have not surrendered custody and control over her. First, respondent asserts that L.P. continues to be covered by her parent's health insurance. Where, as here, there is no indication that providing such coverage requires a financial contribution or involves control over her medical care, this fact alone is not sufficient to prove that L.P.'s parents did not surrender custody and control over her. Respondent also points to a provision in the March 10, 1998 agreement that states, "The Parents agree that, if the Parents hereafter reassume the care and custody of CHILD then CHILD shall no longer be deemed a resident of the DISTRICT . . . ." However, the fact that the agreement provides for L.P.'s education in the event that the situation does not work out is not dispositive, and is not necessarily contradictory to the provision indicating that their intention is for L.P. to live with petitioner.

Therefore, I find that petitioner has rebutted the presumption of parental residence, and that L.P. is a district resident entitled to attend district schools without the payment of tuition. Accordingly, respondent's determination is set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow L.P to attend school in the Pine Bush Central School District without the payment of tuition.

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