Appeal of Y.R., on behalf of her brother A.C., from a decision of the Board of Education of the Nyack Union Free School District regarding residency.

 

 

(June 10, 2003)

 

Ingerman Smith, LLP, attorneys for respondent, Deborah Richardson De Cuevas, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Nyack Union Free School District ("respondent") that her brother, A.C., is not a district resident.  The appeal must be sustained.

On or about October 3, 2002, A.C. moved from his parents" home outside respondent"s district to his sister"s home within the district.  On October 7, 2002, petitioner attempted to enroll A.C. in respondent"s Nyack High School.  She was instructed to submit custodial affidavits from her parents and herself and to complete a guardianship questionnaire.  Petitioner supplied the documents and a copy of her petition to Rockland County Family Court seeking appointment as A.C."s guardian.  These documents stated that A.C. was residing with petitioner due to conflicts with his parents.  The guardianship questionnaire also stated that A.C."s parents would continue to provide financial support and medical care.  Respondent"s director of pupil personnel services telephoned petitioner on October 9, 2002 to inquire about A.C."s financial support and previous schooling.  On October 10, 2002 she advised petitioner that A.C. could not be enrolled.  By letter dated October 10, 2002, the director confirmed this decision.  The letter noted that A.C."s parents continued to pay his expenses and make medical decisions for him.  It also suggested that petitioner was permitting A.C. to live with her to take advantage of respondent's schools.  This appeal ensued.  On October 28, 2002 I granted petitioner"s request for interim relief.

Petitioner claims that A.C. lives with her within the district, and that A.C."s parents have relinquished complete custody and control of A.C. to her because of their inability to control him.  She further alleges that she is A.C."s legal guardian, and has assumed sole responsibility for providing him with food, shelter and clothing, and that she exercises control over A.C."s activities and behavior.  Petitioner also alleges that respondent denied her due process and failed to follow the legal requirements in considering her request for A.C."s admission into the district"s schools.  Accordingly, petitioner seeks a determination that A.C. is a district resident entitled to attend respondent"s schools tuition-free.

 Respondent asserts that there has not been a complete and permanent transfer of care, custody and control of A.C. from his parents to petitioner.  Further, respondent claims that petitioner"s proposed guardianship of A.C. is "a sham perpetrated to take advantage of the educational opportunities provided by the...[d]istrict."  Accordingly, respondent asserts that petitioner has not established that A.C. is a district resident and seeks to have the appeal dismissed.

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 Lapidus, 40 Ed Dept Rep 21, Decision No. 14,408; Appeal of Burdi, 39 id. 176, Decision No. 14,206; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

     A child's residence is presumed to be that of his or her parents (Appeal of Hutchinson, 42 Ed Dept Rep ___, Decision No. 14,865; Appeal of Vazquez, 42 id ___, Decision No. 14,841; Appeal of L.W., 41 id. ___, Decision No. 14,717).   That presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing within the district (Appeal of Maxwell, 42 Ed Dept Rep ___, Decision No. 14,799).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court, it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child's support and custody (Appeal of Hutchinson, 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 Hutchinson, supra; Appeal of Maxwell, supra; Appeal of Lapidus, supra).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Maxwell, supra; Appeal of Lapidus, supra; Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208). 

Respondent does not dispute petitioner"s claim that A.C. lives with her within the district.  Rather, respondent asserts that it determined that A.C. lives with petitioner solely for the purpose of benefiting from respondent"s schools.  Respondent made that determination after reviewing the materials petitioner provided when she attempted to enroll A.C. in its schools.  Those materials included a guardianship questionnaire and custodial affidavits from both petitioner and A.C."s parents.  As evidence of A.C."s non-residence in the district, respondent notes that in petitioner"s custodial affidavit, she stated that: "[A.C.] will remain with me until enrollment of college," and "[p]arents will provide expenses for food, clothing [sic]."  Respondent also points to the custodial affidavit submitted by A.C."s parents, in which they stated that A.C."s living arrangement was "indefinite," but would end upon his enrollment in college.  Further, respondent notes that in the guardianship questionnaire, petitioner answered that A.C."s parents would be responsible for A.C."s medical decisions and financial support, as needed.  

Respondent also notes that in her petition to the Family Court seeking to be appointed A.C."s guardian, petitioner stated that among the reasons she wished to serve as guardian was that doing so would "offer the child an opportunity to complete his schooling in the Nyack School District."  Finally, respondent"s director of pupil personnel services avers in an affidavit that in a telephone conference with petitioner on October 9, 2002, petitioner told her that she could not afford to support A.C., and that his financial support would be provided by his parents.  In sum, respondent asserts that A.C. is not actually a district resident, but rather, lives with his sister in order to attend respondent"s schools tuition-free.

Petitioner asserts that the documents she submitted to respondent in October 2002 demonstrate that A.C. has had a strained relationship with his parents which necessitated his relocation to petitioner"s home.  Petitioner also submits documents with her petition and reply that were not previously filed with respondent.  For example, she includes a copy of a letter from the New York City Department of Probation to A.C., dated July 9, 2002, indicating that his parents had filed a Person in Need of Supervision (PINS) complaint against him.  In her reply, petitioner includes an order to show cause issued by the Rockland County Family Court on October 21, 2002, ordering A.C."s parents to show cause why guardianship should not be granted to petitioner.

Petitioner also includes a copy of a letter, dated October 11, 2002, from the Medical Director of Full Circle Health, indicating that A.C. has been in treatment with him since July 2002, and stating that "[b]ased on my clinical opinion, I am recommending that [A.C.] not live at home as it poses significant stress on the family."  Finally, in her reply, petitioner includes a letter dated November 14, 2002 from the Pastor of Counseling Services at the Church of the Revelation.  The Pastor, a certified social worker, had conducted clinical work with A.C. and his mother.  In the letter, he states that A.C."s parents "were experiencing a great deal of problems with their son...They went as far as issuing a PINS petition...It needs to be noted that [A.C.] should not be returned home, as the environment would not be conducive to his needed nurturing...His chances for sincere help would be placement with his sister who can reach him and nurture him.  It is my opinion that [A.C.] should continue to reside with his sister...."

     The parties dispute whether petitioner was accorded a full opportunity to submit supporting documentation before respondent made its determination.  I have reviewed all of petitioner"s submissions in this appeal, including those documents not initially provided to respondent.  Based upon my review, I find that respondent"s conclusion -- that A.C."s residence has been changed solely to take advantage of respondent"s schools -- is contradicted by petitioner"s submissions, which set forth a valid reason for A.C."s move unrelated to respondent"s schools.  Petitioner states that she has assumed full responsibility for supporting A.C.  The record indicates that she was proceeding with her efforts to be appointed A.C."s guardian.  Under these circumstances, I find that A.C."s actual residence is with petitioner.  Accordingly, respondent"s determination will be set aside (see, Appeal of Lapidus, supra).  

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow A.C. to attend school in the Nyack Union Free School District without the payment of tuition.

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