Appeal of ROY LIM, on behalf of MIYA MAKABE, from action of the Board of Education of the West Hempstead Union Free School District regarding residency.

Decision No. 16,868

(February 4, 2016)

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the West Hempstead Union Free School District that his granddaughter is not a district resident.  The appeal must be dismissed.

The record indicates that, on or about June 16, 2015, petitioner requested admission to respondent’s schools for his granddaughter,[1] Miya Makabe (“Miya”), at which time petitioner stated that Miya would live with him in West Hempstead, New York (“in-district address”) upon her arrival in New York on or around August 14, 2015.  The record indicates that petitioner submitted registration materials in support of such request, including a custodial affidavit from petitioner, a parental affidavit from Miya’s mother and a limited power of attorney.  Respondent states that, based upon a review of the registration materials submitted by petitioner, it determined that Miya was not a district resident and was therefore not entitled to attend respondent’s schools tuition-free.  By letter dated June 18, 2015, petitioner was notified of respondent’s determination.  The stated basis for the determination was threefold: a child’s residence is presumed to be that of her parents and Miya’s parents live in Hawaii; there has not been a total and permanent transfer of custody and control as her parents continue to have legal authority and provide financial support for Miya; and the documents state that Miya is in New York for the purpose of “attending school to obtain better coaching.”

Thereafter, on or about June 30, 2015, petitioner again requested admission to respondent’s schools for Miya.  Petitioner submitted revised registration materials as well as a temporary guardianship affidavit, sworn to on June 29, 2015, in support of this second request.  Respondent asserts, and petitioner does not dispute, that the registration materials submitted on June 30 were the same documents petitioner had originally submitted on June 16 except that certain information therein had been revised to address the deficiencies noted in respondent’s June 18 letter without re-executing the custodial affidavits.  The revised custodial affidavits included statements regarding financial support, the party providing necessities to the student, and reasons for the student’s move to the district.  Based upon a review of the registration materials submitted by petitioner on June 16 and June 30, respondent determined that Miya was not a district resident and was therefore not entitled to attend respondent’s schools tuition-free.  By letter dated July 2, 2015, petitioner was notified of this determination and respondent’s stated basis for the determination was repeated from respondent’s June 18 letter.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 15, 2015.

Petitioner asserts that Miya will reside with him at the in-district address and intends to remain there until the summer of 2017 or longer.  He asserts that Miya’s parents have relinquished parental control over Miya to him.  Petitioner requests a determination that Miya is a resident of respondent’s district and is entitled to attend its schools tuition-free.

Respondent contends that petitioner lacked standing at the time the appeal was filed as the grant of temporary authority over Miya did not become effective until August 13, 2015.  Respondent additionally contends that the appeal is premature as Miya still resided in Hawaii at the time the appeal was commenced and, thus, was not residing in the district.  Respondent maintains that its determination is rationally based and not arbitrary and capricious, and, therefore, should not be set aside.  Respondent also contends that petitioner failed to establish that a permanent relinquishment of custody and control occurred sufficient to rebut the presumption that Miya's residence continues to be that of her parents in Hawaii.  

I must first address the procedural issues.  Petitioner has submitted a response to respondent’s affidavit in opposition to petitioner’s request for interim relief (“response”) dated July 20, 2015.  Respondent argues that the response should not be considered as it contains new allegations, is not a reply as contemplated by the Commissioner’s regulations, and was not submitted with prior permission of the Commissioner.  Petitioner’s response is not a pleading included in §275.3 of the Commissioner’s regulations (see Appeal of Gordiner, 52 Ed Dept Rep, Decision No. 16,433).  However, I note that the affidavit submitted in opposition to petitioner’s request for interim relief is referenced in respondent’s answer and is annexed thereto as an exhibit.  Consequently, I will permit petitioner’s submission as in the nature of a reply to respondent’s answer.  A liberal interpretation of the rules is appropriate when petitioner is, as here, proceeding without the representation of counsel and there is no prejudice to respondent (Appeal of K.M., 55 Ed Dept Rep, Decision No. 16,796; Appeal of Gordiner, 52 id., Decision No. 16,433).

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed petitioner’s reply documents, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  In this case, petitioner is a resident of respondent’s school district.  A child residing in his household for whom the presumption of parental residence has been rebutted may attend respondent’s schools tuition-free.  Petitioner alleges that Miya’s parents have transferred parental control of Miya to him and requests that Miya be enrolled in respondent’s district.  I therefore find that petitioner has standing to challenge respondent’s actions (see Appeal of Shillaci, 53 Ed Dept Rep, Decision No. 16,570; Appeal of a Student With a Disability, 47 id. 142, Decision No. 15,652; Appeal of Riccinto, 46 id. 39, Decision No. 15,435; Appeal of Beska, 39 id. 662, Decision No. 14,344).

Respondent also contends that, because Miya was not physically present in the district at the time the instant appeal was commenced, the appeal is premature and any decision from the Commissioner in relation thereto would constitute an advisory opinion.  It is well-settled that the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752) and that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  However, in this case, petitioner challenges the assistant superintendent’s July 2 determination that Miya is not a district resident entitled to attend its schools tuition-free.  Respondent does not argue that the assistant superintendent was not the board’s designee for purposes of residency determinations made pursuant to section 100.2(y) of the Commissioner’s regulations.  Indeed, the July 2 determination letter advised petitioner of his right to appeal such determination to the Commissioner.  Thus, respondent has made a final determination that is reviewable pursuant to Education Law §310 and I will not dismiss the appeal as premature.

Turning to the merits, Education Law §3202(1) provides, in pertinent part, as follows:

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).

Custody may be legally transferred from a parent or guardian to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction.  Where a court of competent jurisdiction has legally transferred custody of a child, and the child actually lives with the court-appointed guardian, the Commissioner will accept the court’s order as determinative for residency purposes, and will not look behind the court’s decision to determine whether the custody transfer is bona fide (Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).  This approach recognizes that a change in custody is a serious, life-changing event for all involved based on factors not always apparent in the context of a residency appeal to the Commissioner.  Any objection to the legitimacy of the transfer should be made before the court in a custody proceeding, not in a subsequent educational appeal to the Commissioner of Education (Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see 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).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).

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).

Initially, I note that the record indicates that Miya continues to have a relationship with her parents and will maintain regular contact with them as well as visit them during the summer and vacations.  However, 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 (see Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799).

Nevertheless, on the record before me, petitioner has not carried his burden of establishing that there has been a total and permanent transfer of custody and control over Miya from her parents to petitioner.  Indeed, the documentation submitted in support of petitioner’s initial request for admission on June 16, 2015 states that Miya’s mother will continue to provide support, including financial support, food, shelter and clothing, and that Miya’s parents will continue to exercise control over major medical and educational decisions.  Moreover, as respondent notes, the documentation submitted on June 30, 2015 in support of the second request, including petitioner’s custodial affidavit and the parental affidavit executed by Miya’s mother, appear to have been modified by petitioner in response to respondent’s June 18, 2015 determination, apparently by the use of “white-out” correction tape or fluid.  For example, both petitioner’s original and revised custody affidavits are sworn to on June 5, 2015, and both the original and revised parental affidavits are sworn to on May 26, 2015.  However, in the original parental affidavit of Miya’s mother, the response to question 13 indicated that support would be provided by her mother (51%) and her grandfather, petitioner Roy Lim (49%); in the revised affidavit, the answer to question 13 indicates that support would be 100% provided by Roy Lim, and appears in different handwriting than the rest of the affidavit.  Similarly, petitioner’s original custodial affidavit states in the response to question 9 that Miya is an Olympic-level gymnast who wishes to move to New York to train with better coaches than those in Hawaii.  Petitioner’s revised custodial affidavit omits this information.  Such inconsistencies, and the fact that neither revised affidavit was sworn to after such modifications were made, go to the weight of the evidence, which has been considered accordingly.

In both the original and revised custodial and parental affidavits, petitioner and Miya’s mother indicate that Miya’s parents would be consulted regarding major medical and educational decisions.  Moreover, the record clearly reflects that this living situation is temporary.  In both parental affidavits, Miya’s mother explains that Miya will be “temporary [sic] moving from Hawaii to New York to complete her high school for junior and senior year.”  The cover letter submitted by Miya’s parents along with their temporary guardianship affidavit specifically states that the “grant of temporary authority” to petitioner begins on August 13, 2015 and remains effective “until terminated” by either parent.  The temporary guardianship affidavit submitted by Miya’s mother is effective until April 1, 2017, but can be amended or revoked by her mother at any time.  Similarly, the limited power of attorney executed by Miya’s mother is only effective until July 2017, and is revocable at any time by her parents.  As noted above, 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 Begum, 54 Ed Dept Rep, Decision 16,799; Appeal of Polynice, 48 id. 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  The record in this case contains no such proof.  Indeed, petitioner’s own documentation indicates that Miya could return to her parents at any time upon their request or if she so chose.

Respondent also asserts that the sole reason Miya came to New York to live with petitioner is to train with better gymnastics coaches and that she is therefore staying with petitioner to attend school in the district tuition-free (see Appeal of Guevara, 54 Ed Dept Rep, Decision No. 16,634; Appeal of Schillaci, 53 id., Decision No. 16,570).  As noted above, previous Commissioner’s decisions have found that, where there are overriding reasons for establishing one’s residence apart from one’s parents, aside from taking advantage of the educational programs of the district, and all the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (see e.g., Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208).  In the petition, petitioner asserts that Miya is living with him for “personal” reasons and for her “health and welfare,” and that she is not doing so solely to attend respondent’s schools. However, as described above, Miya’s mother’s parental affidavits state that she is moving to New York “to complete her high school....”  Therefore, the indicia of residency have not been established and petitioner has not carried his burden of establishing such overriding reason(s) in this case.

Accordingly, on this record, petitioner has not rebutted the presumption that Miya’s residence is with her parents (see Appeal of Schillaci, 53 Ed Dept Rep, Decision No. 16,570; Appeal of Arreguin, 50 id., Decision No. 16,088; Appeal of Brunot, 35 id. 402, Decision No. 13,584).  I find no basis upon which to set aside respondent’s determination.

Finally, I find no merit to petitioner’s claim that “racial profiling” may have been a “contributing factor” in respondent’s residency determination.  Other than petitioner’s conclusory statement, he provides no evidence of discrimination.  The burden of substantiating a claim of discrimination is clearly on petitioner (see e.g., Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Ritters, 44 id. 117, Decision No. 15,117; Appeal of Fink, 33 id. 340, Decision No. 13,069; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879) and on this record he has failed to meet this burden.

In light of this disposition, I need not address the parties’ remaining contentions.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of Miya at any time should circumstances change, and may present any documentary evidence for respondent’s consideration regarding legal transfer of custody or other bona fide reason(s) for establishing residence apart from her parents consistent with 8 NYCRR §100.2(y), as amended, effective July 1, 2015.

THE APPEAL IS DISMISSED.

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