Appeal of DONNA SQUILLACE, on behalf of her son ROBERT BENJAMIN SQUILLACE, from action of the Board of Education and Superintendent of the City School District of the City of Glen Cove, Board of Education and Superintendent of the Harborfields Central School District and Robert Anthony Squillace regarding residency and transportation.

Decision No. 17,385

(May 8, 2018)

Jaspan Schlesinger LLP, attorneys for respondents Board of Education and Superintendent of the City School District for the City of Glen Cove, Michael D. Raniere, Esq., of counsel

Guercio & Guercio LLP, attorneys for respondents Board of Education and Superintendent of the Harborfields Central School District, Neil Giovanatti, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education and superintendent of the City School District of the City of Glen Cove (“Glen Cove respondents”) that her son Robert Benjamin Squillace (“the student”) is not a district resident and is not entitled to transportation to a nonpublic school.  Petitioner has also joined the student’s father, Robert Anthony Squillace (the “student’s father”) as well as the Board of Education and superintendent of the Harborfields Central School District,[1] (“Harborfields respondents”) which authorized transportation to the student.  The appeal must be dismissed.

Prior to the events described in this appeal, petitioner and the student’s father were married and lived at an address located within the geographical boundaries of Harborfields (the “Harborfields address”).  Additionally, at all times relevant to this appeal, Harborfields has provided the student with transportation to and from a nonpublic school.

Petitioner and the student’s father separated in September 2014.  After the separation, the student’s father remained at the Harborfields address and petitioner moved to an address within the geographical boundaries of Glen Cove (the “Glen Cove address”).  In a stipulation of settlement, the parties agreed to joint legal and residential custody of the student as well as an alternating week visitation schedule.

Sometime prior to the beginning of the 2013-2014 school year, petitioner wrote to the superintendent of the City School District of the City of Glen Cove Glen (“Glen Cove”) to request that Glen Cove provide transportation to the student from her residence to the nonpublic school.  In a letter dated August 27, 2013, Glen Cove’s superintendent responded by indicating that a student who “legally resides” at petitioner’s address “would be provided transportation” to the nonpublic school “in accordance with State Education regulations and district parameters.”

On October 1, 2014, petitioner attempted to register the student in Glen Cove.  On October 6, 2014, petitioner provided additional documentation and requested that Glen Cove transport the student from her residence in Glen Cove to the nonpublic school.

On October 8, 2014, petitioner emailed Harborfields’ superintendent and asserted that the stipulation of settlement “provid[ed] two residences” for the student and requested that Harborfields provide transportation for the student to and from the nonpublic school on those weeks that he resided with his father.

On October 9, 2014, petitioner was told by Glen Cove’s superintendent that Glen Cove would not provide transportation for her son because he is not a district resident.  Petitioner requested that the determination be put in writing and, on October 17, 2014, Glen Cove’s superintendent sent an email stating that the student is continuing to be transported by Harborfields and a student can only have one legal residence.

Also, on October 9, 2014, Harborfields’ superintendent emailed petitioner and informed her that the district had “determined that [the student was] currently a resident of Harborfields” and that the district would “continue to transport” the student to the nonpublic school for the upcoming school year.  This appeal ensued.

Petitioner contends that the student has two legal residences and is entitled to transportation from Glen Cove and Harborfields depending on his location, which is determined by the stipulation of settlement.  Petitioner seeks a declaration that the student is a resident of both Glen Cove and Harborfields and entitled to “transportation during that time [he] is with the parent residing in the respective district.”  Petitioner further seeks money damages based on a job opening she was allegedly unable to accept because the student was “denied bus transportation” by Glen Cove.

The Glen Cove respondents contend that the appeal must be dismissed as untimely.  The Glen Cove respondents further assert that the student is not a resident of Glen Cove and, as such, they were not obligated to provide transportation to the nonpublic school.

The Harborfields respondents also argue that the appeal must be dismissed as untimely.  The Harborfields respondents further contend that their determination that the student was a district resident was reasonable, and that any claim by petitioner concerning the interpretation of the divorce decree is outside the scope of an appeal pursuant to Education Law §310.

The student’s father contends that he and the student are residents of Harborfields, and that the determinations of Glen Cove and Harborfields were reasonable and should be upheld.

Both Glen Cove and Harborfields argue that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

Here, petitioner admits in the petition that Glen Cove’s superintendent verbally informed her that the student was not a district resident on October 9, 2014.  In response to petitioner’s request for a written determination, Glen Cove’s superintendent sent an email on October 17, 2014.  According to petitioner’s affidavit of service, the Glen Cove respondents were personally served with a copy of the petition on November 14, 2014, more than 30 days after petitioner was verbally advised of the residency determination, but less than 30 days after the October 17 email, which appears to be the only written determination made by Glen Cove.

Section 100.2(y)(2) of the Commissioner’s regulations, as it existed at all times relevant to this appeal,[2] provided, in pertinent part:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  When the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is neither a resident of such district nor entitled to attend its schools ... such board or its designee shall, within two business days, provide written notice of its determination to the child’s parent, to the person in parental relation to the child, or to the child, as appropriate (emphasis added).

Section 100.2(y)(2) further provided that the written notice must state, among other things, “. . . the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools ....”

Therefore, pursuant to 8 NYCRR §100.2(y), petitioner was entitled to receive a written residency determination from Glen Cove and it appears from the record that petitioner was provided such a determination on October 17, 2014.  Any delay in commencing the appeal is attributable to the Glen Cove respondents’ delay in providing written notice of its determination.  Since this appeal was commenced within thirty days of such written determination, I decline to dismiss the appeal from the actions of the Glen Cove respondents as untimely.  

To the extent petitioner seeks to challenge the Harborfields respondents’ October 9, 2014 determination that the student was a district resident entitled to continue to receive transportation, the appeal must be dismissed as untimely.  Petitioner’s affidavit of service indicates that the Harborfields respondents were personally served with a copy of the petition on November 14, 2014, more than 30 days after the October 9, 2014 email advising petitioner of Harborfields’ determination.  Petitioner does not set forth good cause, or any cause, in her petition to excuse this delay as required by 8 NYCRR §275.16.  Therefore, the appeal is dismissed against the Harborfields respondents as untimely.

To the extent petitioner is challenging Glen Cove’s refusal to provide transportation to her son as a resident student on alternating weeks in the 2014-2015 school year, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  In this appeal, petitioner is challenging Glen Cove’s residency determination, which led Glen Cove to deny her transportation request for the 2014-2015 school year.  The 2014-2015 school year has ended and, on this record, there is no basis for determining if petitioner’s son would be entitled to transportation to the nonpublic school he attends for any subsequent school year.  Not only is there no evidence in the record concerning the student’s living arrangement in any subsequent school year or the status of the court-ordered stipulation which provided for joint custody, but also Education Law §3635(2) requires parents of nonpublic school students to annually submit a transportation request by April first preceding the next school year.  Therefore, petitioner’s challenge to the Glen Cove respondents’ determination that the student is not a district resident and is not entitled to transportation must be dismissed as moot.

Finally, petitioner’s request for damages for her alleged loss of a job due to denial of her request to have transportation provided by both Glen Cove and Harborfields must be dismissed for lack of jurisdiction. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

Even if the appeal were not subject to dismissal on procedural and other grounds, it would be dismissed on 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).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, the child’s time is “essentially divided” between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

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).

Here, the record shows that petitioner and the student’s father share joint custody of the student; that the student’s time is essentially divided between petitioner’s residence in Glen Cove and the student’s father’s residence in Harborfields; and that both parents have assumed responsibility for the child.  Therefore, petitioner and the student’s father may designate Harborfields or Glen Cove as the student’s district of residence.  However, the record reflects that petitioner and the student’s father have not made such a designation.  Absent such a designation, and considering the student’s residence within Harborfields prior to October 2014, it was neither arbitrary nor capricious for Harborfields to continue to deem the student a district resident. If petitioner and the student’s father cannot agree on a district of residence, such disagreement must be resolved in in a court proceeding accordance with the stipulation of settlement and may not be resolved in an appeal brought pursuant to Education Law §310.

Petitioner cites Appeal of Pyskadlo (47 Ed Dept Rep 56, Decision No. 15,624) in support of the proposition that “parents must agree as to which district will be consider[ed] the residential district for the child.”  From this premise, petitioner offers the following syllogism: she and the student’s father must both agree on the student’s school district of residence; she and the student’s father have not agreed on a school district of residence; therefore, Harborfields erred by determining that the student was a district resident.  While I agree with petitioner’s first premise, I disagree with her conclusion.  Petitioner’s argument would result in the student having two or zero legal residences.  As indicated above, it is well-settled that a child may have only one legal residence, including when his or her parents live apart (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).

Finally, while not raised by the parties, it appears from the record that Glen Cove failed to comply with the procedures required by 8 NYCRR §100.2(y).  As noted above, the October 9, 2014 written notice was not provided within two business days of the determination, nor did it fully comply with section 100.2(y)(2) of the Regulations of the Commissioner of Education as such regulation existed in October 2014.  Moreover, the record contains no evidence that the district afforded petitioner or the student’s father the opportunity to submit information concerning the student’s right to attend the district’s schools prior to the Glen Cove’s superintendent’s determination.  I remind the district of its obligation to comply with the procedures established in 8 NYCRR §100.2(y).

Given this disposition, I need not address the parties’ remaining arguments.

THE APPEAL IS DISMISSED.

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