Decision No. 17,767
Appeal of the BOARD OF EDUCATION OF THE STAMFORD CENTRAL SCHOOL DISTRICT from action of the Board of Education of the Deposit Central School District and the Delaware County Department of Social Services regarding tuition reimbursement.
Decision No. 17,767
(October 10, 2019)
Girvin & Ferlazzo, PC, attorneys for petitioner, Erin R. Rose-Morris, Esq., of counsel
Coughlin & Gerhart, LLP, attorneys for respondent Board of Education of the Deposit Central School District, Cheryl I. Sacco, Esq., of counsel
Delaware County Office of the County Attorney, attorneys for respondent Delaware County Department of Social Services, D. Jeremy Rase, Esq., of counsel
BERLIN., Interim Commissioner.--Petitioner appeals the refusal of the Board of Education of the Deposit Central School District (“respondent Deposit”) to pay for tuition costs incurred by petitioner for educating two foster care students (“the students”) during the 2017-2018 school year. The appeal must be sustained.
According to an affidavit from the Delaware County Department of Social Services’ (“DSS” or “respondent DSS”) deputy commissioner at the outset of the 2017-2018 school year, the students resided with their mother in respondent Deposit’s district. The deputy commissioner states that the students then “moved in with a family friend in Deposit, New York,” in November 2017 before “mov[ing] into a third home in Deposit” in January 2018. According to the deputy commissioner, the students subsequently moved to Roscoe, New York to live with their “older sister,” who attempted to register the students in the Roscoe Central School District. The deputy commissioner asserts that the Roscoe Central School District “refused to register” the students, however, because the sister “was not the custodial party.” In February 2018, the students “returned to Deposit to stay with friends.” The deputy commissioner indicates that the students’ mother was homeless when she signed them into foster care on March 27, 2018.
On April 2, 2018, DSS sent petitioner and respondent Deposit two forms titled “New York State Office of Children and Family Services School District Notification of Foster Child Placed in a Foster Family, Agency Boarding, or Group Home” (“DSS 2999 forms”), which identified respondent Deposit’s district as the district in which the students resided when they entered foster care on March 27, 2018 and petitioner’s district as the district in which DSS placed the students in a foster care residence on that same date. In an affidavit filed with this appeal, petitioner’s business manager (“business manager”) states that the students enrolled in school in petitioner’s district on April 5 and April 6, 2018, respectively.
By letter dated April 6, 2018, the business manager advised respondent Deposit that it was responsible for the cost of the students’ instruction. The business manager included the estimated dollar amount of tuition for each student and enclosed invoices for the cost of tuition for the remainder of the 2017-2018 school year.
By invoice dated June 26, 2018, petitioner again requested payment from respondent Deposit for the students’ tuition. In her affidavit, the business manager states that “sometime in mid-July” she spoke with respondent Deposit’s superintendent, who advised her that the district did not agree with its designation as the district in which the students resided when they were placed in foster care and that it would not be making payment. This appeal ensued.
Petitioner contends that respondent Deposit is responsible for the cost of the students’ instruction because, in the DSS 2999 forms dated April 2, 2018, DSS determined that the students resided in respondent Deposit’s district when they were placed in foster care, and respondent Deposit failed to challenge this determination within 10 days. Petitioner seeks a determination that respondent Deposit is obligated to reimburse petitioner for the costs it incurred educating the students during the 2017-2018 school year.
Respondent Deposit denies financial responsibility for the students’ tuition costs and argues that the appeal must be dismissed for failure to join a necessary party, DSS.
By letter dated August 19, 2019, petitioner was directed, pursuant to section 275.1 of the Commissioner’s regulations, to join DSS as a respondent in this appeal and to revise the caption accordingly by August 26, 2019. The record reflects that petitioner complied with this directive by serving DSS with, among other things, an amended notice of petition and verified petition on August 23, 2019. Respondent DSS timely answered and argues that any claim raised against it must be dismissed.
First, I must address a procedural issue. Although respondent contends that the appeal must be dismissed because petitioner failed to join DSS, this argument has been rendered academic because, pursuant to my authority under section 275.1 of the Commissioner’s regulations, I ordered DSS joined, and DSS has been joined (Appeal of Bd. of Educ. of the Harborfields Cent. School Dist., 41 Ed Dept 15, Decision No 14,597; Appeal of Shravah, et al., 36 id. 396, Decision No. 13,760). Therefore, I decline to dismiss the appeal for failure to join a necessary party.
Turning to the merits, Education Law §3202(4) provides, in pertinent part, that the cost of instructing a child in foster care shall be borne by the school district in which the child resided at the time a public agency – in this case, DSS – assumed responsibility for the child’s placement, support, and maintenance. Within 10 days of the child’s placement in foster care, such public agency must identify the district responsible for the cost of the child’s instruction and notify the district in writing of this designation (Education Law §3202[f][i]). If such district’s board of education disagrees with the public agency’s determination, it may, within 10 days of its receipt of such notice, submit to the public agency additional evidence to establish that it is not responsible for the child’s tuition (Education Law §3202[f][ii]). The public agency then has five days from the submission of such additional evidence to make a final determination. If the district does not submit additional evidence within the 10-day period, the public agency’s initial determination and notification are deemed final (Education Law §3202[f][ii]).
By DSS 2999 forms dated April 2, 2018, respondent DSS timely identified respondent Deposit’s district as the district in which the students resided when placed in foster care. The record before me indicates that respondent Deposit did not challenge this designation within the period prescribed in Education Law §3202(4)(f)(ii). Therefore, upon expiration of the 10 day time period, the determination made by respondent DSS on April 2, 2018 became final and binding, and respondent Deposit is estopped from challenging its designation as the district responsible for the cost of the students’ instruction on appeal (Appeal of the Board of Education of the Kiryas Joel Union Free School District, 59 Ed Dept Rep, Decision No. 17,712; Appeal of the Board of Education of the City School District of the City of Plattsburgh, 58 id., Decision No. 17,641; Appeal of the Board of Education of the Dansville Central School District, 56 id., Decision No. 17,046).
Given the above determination, I need not, for the purposes of this appeal, determine what district the students resided in when DSS placed them in foster care. However, I note in this respect that 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 Powell, 57 Ed Dept Rep, Decision No. 17,320).
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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).
Respondent Deposit submits an affidavit from its superintendent which states that the students resided with their sister as of November 29, 2017 and “enrolled in Roscoe Central School District” during such time. However, there is no evidence on this record that the students’ mother effected a total and permanent transfer of custody and control of the students to their sister. Although respondent Deposit submits requests for release of the students’ education records that were signed by the students’ sister, respondent does not provide any accompanying evidence that the sister had custody of the students or was authorized in any way to sign the release forms. As indicated above, respondent DSS’ deputy asserts that, on March 9, 2018, DSS “confirmed that the Roscoe Central School District had refused to register the [students] while they were staying with their ... sister ... because she was not the custodial party.” Therefore, based on the record before me, the evidence indicates that the students’ residence was that of their mother, who resided within respondent Deposit’s district before becoming homeless.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent Deposit pay petitioner for tuition costs incurred by petitioner for educating the students during the 2017-2018 school year.
END OF FILE
 Although petitioner did not initially name and serve DSS, it was directed, pursuant to the Commissioner's sole discretion to join DSS as a party(8 NYCRR §275.1).
 On April 12, 2018, the Legislature amended Education Law §3202. Although the Legislature renumbered relevant portions of Education Law §3202(4) and revised the statutory language therein, the amendments have no substantive effect on the issues raised in this appeal.