Decision No. 13,664

(August 28, 1996)

Susan E. Rodems, Esq., attorney for petitioners

Michael J. Stanley, Esq, attorney for respondent

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Oswego ("respondent") that their grandson is not a resident of the district. The appeal must be sustained in part.

Petitioners are residents of the district and the paternal grandparents of the student. On January 29, 1996, the student's parents relinquished custody and control of him to petitioners and the student began living with them on or about January 31, 1996. Prior to that time, the student lived with his parents in the Hannibal Central School District. He was classified as learning disabled by that district's Committee on Special Education (CSE). At the Hannibal school district, he experienced problems when the school was allegedly unable to provide him with the services required under his Individualized Education Plan (IEP). Despite the family's request for an impartial hearing and a stipulated settlement of that hearing, the student's mother claims that the school was unable to provide him with an appropriate education. He subsequently experienced physical symptoms of stress due to his school situation and his mother also contends that he experienced emotional trauma.

On February 1, 1996, petitioners enrolled their grandson in respondent's school. On February 2, 1996, an order to show cause was entered in Oswego County Family Court granting temporary physical custody of the student to petitioners. At the direction of the family court judge, respondent was notified of the proceeding. Respondent appeared at the family court proceeding to argue that the "individuals cannot relocate simply for purposes of choosing to go to school in a different district."

On March 7, 1996, the district's Director of Secondary Education and Instructional/Administrative Technology ("Director of Secondary Education") sent a letter informing petitioners that he had determined that their grandson was not entitled to an education in the district because his parents did not reside there. That letter further notified petitioners that they would be charged pro-rated tuition for their grandson's attendance at school. On March 28, 1996, a final order of custody was entered in family court granting petitioners physical custody of the child with joint legal custody with the child's parents. The order specifically stated that the court was limited in its jurisdiction and that a court of competent jurisdiction would have to address any remaining questions concerning the student's educational interests. On April 5, 1996, petitioners filed an Article 78 proceeding in Oswego County Supreme Court against respondent. Petitioners obtained an Order to Show Cause staying any action by the district to remove the student from school until May 3, 1996. Petitioners requested and received an extension of the court date until June 28, 1996. However, by letter dated June 7, 1996, petitioners withdrew the Supreme Court action and determined to proceed through this appeal before the Commissioner of Education.

On April 18, 1996, respondent board reviewed the residency determination of the district's Director of Secondary Education and concurred that the student was not a resident of the district finding that the sole reason the child resided with his grandparents was to take advantage of the district's educational program. This appeal was commenced on May 17, 1996. Petitioners request for interim relief was denied on June 3, 1996 because the Supreme Court's action as of that date made interim relief by the Commissioner unnecessary.

Petitioners allege that they have custody and control of their grandson and that the reason he now resides with them is because of his physical health. Petitioners also allege that respondent is discriminating against their grandson because he is a special education student and that the district has previously accepted nonresident students in the district. Petitioners request a determination that their grandson has been a resident of respondent's district since January 30, 1996 and that the payment of tuition is therefore not required for his continued attendance in respondent's schools. Respondent raises a procedural defense that the petition fails to set forth a clear and concise statement of petitioners' claims. Respondent also contends that the only reason the student resides with his grandparents is to attend school in the district and that he is therefore not a resident. Finally, respondent states that it has taken all appropriate steps to implement the plan developed for the student and denies that it has discriminated against him based on his learning disabilities and health history.

Education Law '3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523).

Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279; Appeal of Garretson, supra). Where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Brutcher, 33 Ed Dept Rep 120; Appeal of Ritter, 31 id. 24; Appeal of McMullan, 29 id. 310). Moreover, the law is clear that parents may not transfer legal guardianship of their children merely to achieve residence status for the children to take advantage of the local schools (Matter of Proios, 111 Misc 2d 252; Appeal of O'Malley, Decision No. 13629, dated June 17, 1996; Appeal of Opurum, 35 Ed Dept Rep 364; Appeal of Brutcher, 33 id. 120 Appeal of Pinto, 30 id. 374).

The record in this case indicates that after reviewing the materials petitioners submitted to enroll their grandson for school, respondent determined that the student was residing in the district for the sole purpose of attending its schools. He previously resided with his parents in the Hannibal Central School District. When problems arose with his educational program in that district which were not resolved to his parents' satisfaction, the student moved in with his grandparents. Although petitioners assert that the reason for the student's move were his health problems, the record of those health problems consists of two doctor's notes, one dated January 19, 1996 (Petitioners' Exhibit D) and the other undated (Petitioners' Exhibit E) which state that the student is experiencing stress and should be moved to another school "in the interest of his physical health."

The record indicates that when the student's parents disagreed with the Hannibal school district's implementation of the IEP, they requested an impartial hearing which resulted in a settlement. The student's parents allege that the district failed to implement the terms of the settlement. At that point, the student's parents had the right to request a new impartial hearing which, if necessary, could be appealed to the State Review Officer (SRO). If necessary, the determination of the SRO could then be appealed in state or federal court in an effort to secure proper services for their son. Finally, where a public school fails to provide a disabled child with an appropriate education under the Individuals with Disabilities Education Act (IDEA), and the parents unilaterally withdraw their child from the public school and place the child in a private school that provides an appropriate education under the IDEA, the parents may be entitled to reimbursement for tuition and related educational expenses (Florence County School District Four, et al. v. Shannon Carter by and through Emory D. Carter, 510 US __, 126 LEd2d 284, 114 SCt 361). However, in this case, the student's parents determined that it would be in their son's best interest to be transferred to the custody of his grandparents, the petitioners, who then sought his admission to respondent's school.

Petitioners argue that they did not receive a fair residency review by the district and claim that they were never informed that district officials intended to conduct an investigation into the residency status of their grandson. The record indicates that the district's Director of Secondary Education made a residency determination based on documents submitted for the student's initial enrollment for school and notified petitioners in a letter dated March 7, 1996 that he had determined that their grandson was not entitled to a free public education within respondent's district because he was not a district resident. Apart from the documentation submitted at the student's initial registration, there is no evidence that the district's Director of Secondary Education afforded petitioners or the students' parents an opportunity to submit information regarding the student's residency prior to rendering his determination. Moreover, the March 7th letter failed to notify petitioners of the procedure to obtain review of the Director's decision within the school district as required under 8 NYCRR 100.2(y). This residency determination was then upheld by respondent in a letter dated April 19, 1996.

Petitioners also object to respondent's rejection of sixteen other residency applications at the same time and claim that their application for residency was not considered individually. While I do not find that fact significant in itself, the record does not establish that respondent fully complied with the residency determination procedures set forth in 8 NYCRR 100.2(y). Therefore, I am constrained to remand the matter back to the school district to make a determination of the student's residency in accordance with the provisions of 8 NYCRR 100.2(y), based on the totality of the circumstances, including the final custody order of the Oswego County Family Court.

In light of the foregoing disposition, it is unnecessary to address the parties' remaining claims.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent hold a hearing pursuant to 8 NYCRR 100.2(y) to determine whether the student is a resident and entitled to attend the schools of the Oswego City School District.

IT IS FURTHER ORDERED that respondent permit the student to remain in school until respondent issues its residency determination.

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