Appeal of J.H., on behalf of her daughter H.W., from action of the Board of Education of the Mexico Central School District regarding residency.

Decision No. 16,376

(July 20, 2012)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Christopher M. Militello, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Mexico Central School District (“respondent”) that her daughter, H.W., is not a district resident.  The appeal must be dismissed.

H.W. has been attending the district’s New Haven Elementary School (“New Haven”) since September 2009.  The New Haven principal avers that in December 2011, the school bus driver on H.W.’s bus route informed him that H.W. was not residing at her registered address on Risley Drive in New Haven (“Risley”), that this address was actually H.W.’s grandmother’s residence, and that the driver also believed that H.W. was living with her mother outside the district.  After conferring with H.W.’s teacher and checking school files, the principal conferred with the district’s director of personnel (“director”), who is also the residency officer.  Thereafter, the director requested that petitioner provide proof of H.W.’s residency.

On January 12, 2012, petitioner met with the principal and presented bills addressed to her at the Risley address.  However, the principal avers that petitioner also admitted at that time that she resided in the City of Oswego, outside respondent’s district, but desired that H.W. continue to attend New Haven and was willing to pay tuition for her to do so.  The principal then contacted the director, as did petitioner.  The director avers that petitioner admitted to him that her mother does not have legal custody of H.W., but that H.W. spends much of her time at Risley each week, including overnights, so that petitioner’s mother can babysit H.W. while petitioner works 12 to 16-hour night shifts as a nurse in Syracuse.

By letter dated February 29, 2012, the director notified petitioner that because she and H.W. resided in Oswego, H.W. is not a resident and payment of tuition would be required for H.W. to continue enrollment in the district’s schools after March 30, 2012.[1]  This appeal ensued.  Petitioner’s request for interim relief was granted on April 4, 2012.

Petitioner asserts that she and H.W. were living with petitioner’s parents at the Risley address until April 18, 2011, when petitioner’s sister returned to convalesce at the family residence and displaced them.  She states that she was unable to find housing in the district and was thus forced to relocate to Oswego, but that her mother continues to provide childcare for H.W. so that petitioner can work.  Petitioner admits that H.W. resides with her in Oswego and is “supported by both parents” but states that H.W. also resides at Risley with her grandparents.  She asserts that without that childcare, she could not work and H.W. could not attend school.  According to petitioner, H.W.’s father has no contact with her and provides only court-ordered child support.  She contends that the statements of the bus driver and teacher are unsubstantiated hearsay, and she disputes the principal’s assertions that he has personally observed her dropping H.W. off at school in the mornings on a regular basis.  In addition, petitioner argues for the first time in this appeal that H.W. is a homeless student within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) because she does not have a fixed, regular nighttime residence.  She seeks a determination that H.W. is a district resident entitled to attend school in the district without the payment of tuition.

Respondent contends that the appeal must be dismissed because petitioner admits that she and her daughter are not district residents.  Respondent further asserts that H.W. is not a homeless student under McKinney-Vento.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of Dennis, 47 id. 327, Decision No. 15,712).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of A Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652). A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In this case, petitioner admits she resides in Oswego and has not rebutted the presumption that H.W. resides with her there.  Petitioner’s mother admits that petitioner’s residence is in Oswego, that she is H.W.’s “alternative caregiver” and that H.W. is at her home “approximately 4 days during the school week.”  However, this record contains no evidence demonstrating that petitioner has executed a total or permanent transfer of H.W.’s custody and control to her grandmother (seee.g.Appeal of Kendall, 50 Ed Dept Rep, Decision No. 16,149; Appeal of Weaver, 39 id. 588, Decision No. 14,320).[2] While I am sympathetic to petitioner’s personal situation, because she has not established that there has been a total and permanent transfer of custody of H.W. to her grandmother, I do not find respondent’s residency determination to be arbitrary, capricious or unreasonable (Appeal of Kendall, 50 Ed Dept Rep, Decision No. 16,149; Appeal of Digilio, 37 id. 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653).

As noted above, petitioner also claims for the first time in this appeal that H.W. is a homeless student under McKinney-Vento because she lacks a fixed, regular nighttime residence.  Because petitioner never raised the issue of homelessness to respondent prior to commencing this appeal, respondent has never made a determination on such claim and this appeal therefore seeks review only of respondent’s residency determination.[3]  Issues not raised before respondent and presented for its consideration and decision may not be raised for the first time in an appeal to the Commissioner under Education Law §310 (Appeal of A.R. and S.R., 40 Ed Dept Rep 262, Decision No. 14,477).

Even if petitioner’s contention were properly before me, the record does not support a finding that H.W. is a homeless student under McKinney-Vento.  Education Law §3209(1)(a) defines a homeless child as:

1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
2. 1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
   2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
   3. abandoned in hospitals;
   4. awaiting foster care placement; or
   5. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or
3. a child or youth who has a primary nighttime location that is:
4. 1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
   2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ...

Section 100.2(x) of the Commissioner’s regulations also conforms to the definition of “homeless children and youths” in McKinney-Vento.

Based on the record before me, I find that H.W. does not fit the definition of a homeless child under either State or federal law.  Petitioner submits no evidence that she lacks a fixed, regular and adequate night-time residence or that she is living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).  The fact that she rents a residence outside respondent’s district and wants to move back to the district does not make such residence temporary or transitional.  To the contrary, the record indicates that petitioner has been residing in Oswego since April 2011 and, as described above, petitioner has not rebutted the presumption that H.W. resides with her there.  Moreover, petitioner has submitted only conclusory statements that she has been unable to find adequate housing within respondent’s district.  The fact that H.W. stays overnight with her grandmother to accommodate petitioner’s work schedule and childcare needs does not compel a finding that H.W. lacks a fixed, regular or adequate nighttime residence under McKinney-Vento.

Although the appeal must be dismissed, I note that petitioner retains the right to apply for admission to the district on H.W.’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE