Appeal of CINDY WARD, on behalf of TRAN MINH, from action of the Board of Education of the Middle Country Central School District regarding residency.

Appeal of CINDY WARD, on behalf of THIEN PHAM, from action of the Board of Education of the Middle Country Central School District regarding residency.

Decision No. 17,944

(December 2, 2020)

Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ROSA., Interim Commissioner.--In two separate appeals, petitioner appeals determinations of the Middle Country Central School District (“respondent”) to deny Tran Minh (“Tran”) and Thien Pham (“Thien”) (collectively, “the students”) transportation to a nonpublic school during the 2019-2020 school year.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioner states that she is the “legal guardian” of the students, who are citizens of Vietnam living in the United States pursuant to individual Class F-1 Visas (“F-1 Visa”).  An F-1 Visa is issued to citizens of foreign countries who wish to enter the United States to attend certain schools – in this case, St. Anthony High School, a nonpublic high school located in Rockville Centre, New York (the “nonpublic school”).  

On August 25, 2018, petitioner sought to enroll Thien as a district resident.  In support of her request, petitioner submitted a copy of Thien’s F-1 Visa.  Respondent enrolled Thien as a district resident and provided transportation to and from the nonpublic school during the 2018-2019 school year.

On August 22, 2019, petitioner sought to enroll Tram as a district resident.  As with Thien, petitioner submitted a copy of Tram’s F-1 Visa.  Respondent enrolled Tram and provided him with transportation during the beginning of the 2019-2020 school year.  Shortly after respondent enrolled Tram, respondent commissioned a transportation efficiency study and realized that it might have been improperly providing transportation to certain nonresidents. 

By separate letters dated October 1, 2019, respondent’s superintendent informed petitioner that Thien and Tram may not be eligible for transportation because they were not residents of the district.  The superintendent further indicated that she had scheduled a meeting on October 7, 2019 to permit petitioner to present any written and verbal information concerning the students’ residency status.

According to the record, petitioner spoke with the superintendent on October 2, 2019 by telephone.  Respondent avers that, in this phone call, petitioner indicated that she had no more documentation to offer in support of her assertion that the students were residents of the district; that she was unable to attend the October 7, 2019 meeting in person; that the phone conversation could “be considered as her attending the meeting”; and that an in-person meeting was unnecessary.

By letters dated October 18, 2019, respondent informed petitioner of its determination that the students were not district residents and, thus, not entitled to transportation to the nonpublic school.  The letter further informed petitioner that the students’ transportation to the nonpublic school would terminate as of November 27, 2019.  These appeals ensued.  Petitioner’s requests for interim relief were denied on November 4, 2019.

Petitioner asserts that, because she is a legal resident of the district and the students’ parents have transferred custody of the students to her, the students are district residents entitled to transportation to the nonpublic school.  Petitioner further states that the students intend to reside with her in respondent’s district “for over 75% of the calendar years” 2020 and 2021.  Petitioner additionally indicates that the students live in Vietnam for “2 months a calendar year.”  Petitioner also states that the students’ parents have “surrendered parental control over [the students] to [petitioner].”  Petitioner seeks a determination that the students are residents of respondent’s district entitled to receive transportation.[1]

Respondent argues that its determination was reasonable and that it acted properly at all times.

First, I must address a procedural matter.  Petitioner alleges that she was denied a “formal hearing” concerning the students’ right to attend respondent’s schools as district residents.  Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide 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.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Burgess, 57 Ed Dept Rep, Decision No. 17,178; Appeal of Clark, 46 id. 143, Decision No. 15,468).  The regulation does not require a formal hearing or representation by counsel (Appeal of Burgess, 57 Ed Dept Rep, Decision No. 17,178).  Therefore, to the extent petitioner asserts a right to participate in a “formal hearing” derived from 8 NYCRR §100.2(y), this claim is without merit.

To the extent petitioner claims that she was denied an opportunity to meet with a district employee on October 7, 2019, the record reflects that petitioner waived any right to participate in such a meeting.  As indicated above, petitioner stated that the phone conversation could “be considered as her attending the meeting” and that an in-person meeting was unnecessary.  In addition, respondent has submitted a contemporaneous calendar entry made by the superintendent in which the superintendent wrote:  “returned call; call will count as meeting.”  Petitioner did not submit a reply or otherwise respond to respondent’s contentions.  Therefore, on this record I cannot find that petitioner was denied an opportunity to submit information concerning the students’ right to attend school in the district.

Turning to the merits, pursuant to Education Law §3635(1)(a), a school district must provide transportation to “all children residing within the district to and from the school they legally attend,” so long as the distance between such child’s residence and school is within the statutorily prescribed limits.  A district is thus not required by law to provide transportation to non-resident students (Appeal of G.S., 56 Ed Dept Rep, Decision No. 17,083; Appeal of Markarian, 47 id. 114, Decision No. 15,644; Appeal of Jeudy, 46 id. 512, Decision No. 15,579).  As elsewhere in the Education Law, a child’s “residence” for the purpose of transportation is established by the child’s physical presence and intent to remain within the district (Appeal of J.E.C. Jr., 59 Ed Dept Rep, Decision No. 17,764; see generally Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385 [2004]).  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).

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 M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  In addition, where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

On the record before me, petitioner has not carried her burden of establishing that there has been a total and permanent transfer of custody and control over the students from their legal guardians to petitioner.  The documents which petitioner submits to prove that she is the “legal guardian” of the students are entitled “Temporary Custody Agreement” and expire during the summer of 2020.  These documents reflect that the students’ legal guardians sought to “temporarily entrust []” petitioner with care of their children.  Thus, on their face, the documents are temporary, which precludes them from constituting a total transfer of custody and control (Appeal of Romero, 58 Ed Dept Rep, Decision No. 17,599; Appeal of Burova, 56 id., Decision No. 16,979; Appeal of Polynice, 48 id. 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  Although petitioner asserts that the students’ legal guardians have “surrendered parental control” and that she “provides food, shelter, and clothing”; “is responsible for ... meals and housing costs”; “exercises control over [the students’] activities and behavior”; and “makes all medical and educational decisions,” the only evidence to support such assertions are the temporary custody agreements.  Therefore, petitioner has not met her burden of proving that the students’ legal guardians effected a complete transfer of custody and control of the students to her.

Additionally, the students’ possession of F-1 Visas does not, ipso facto, render them district residents.  Pursuant to 8 USC §1101(a)(15)(F)(i), the students’ receipt of an F-1 Visa means that each student is “[a]n alien having a residence in a foreign country which he has no intention of abandoning” who is residing in the United States “temporarily and solely for the purpose of pursuing ... a course of study ....”  Although the Commissioner has held that a school district may not impose an irrebuttable presumption of residency based on a student’s visa status, such status is nevertheless relevant to a student’s intent to remain in the United States (see e.g. Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764, Appeal of Esposito, 57 id., Decision No. 17,415; Appeal of Plata, 40 id. 552, Decision No. 14,555).  As indicated above, an F-1 Visa is intended for one who “seeks to enter the United States temporarily and solely for the purpose of pursuing ... a course of study.”  Petitioner has presented no evidence to the contrary.  Thus, the students’ visa status does not support a finding that the students intend to remain within respondent’s district (Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764).

While respondent initially provided the students with transportation to which they were not legally entitled, prior decisions of a district do not bind or estop the district from making a different determination (see e.g. Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).  It is well-settled that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Wertman, 58 Ed Dept Rep, Decision No. 17,614, judgment granted dismissing petition, Wertman v. NYS Education Department, Sup. Ct., Albany Co., Special Term [Cholakis, J.], December 30, 2019).

Therefore, the presumption that the students reside with their parents has not been rebutted.  As such, I cannot find respondent’s determination that the students are not district residents and, therefore, not entitled to transportation to the nonpublic school to be arbitrary or capricious (see Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764, Appeal of Botsakos, 56 id., Decision No. 17,093).  Although petitioner alleges that transportation of the students “would create no undue burden or cost” to respondent, respondent is only obligated to transport a student between his or her residence in the school district and the school which he or she legally attends (Education Law §3635[1][a]).

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

THE APPEALS ARE DISMISSED.

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