Decision No. 13,801

(July 30, 1997)

Douglas E. Libby, Esq., attorney for respondent, Douglas E. Libby and Bernadette Gallagher-Gaffney, Esqs., of counsel

MILLS,Commissioner.--Petitioner appeals respondent's determination that L.N., his niece, is not a resident of the Sewanhaka Central High School District. The appeal must be dismissed.

Prior to 1995, L.N. lived with her parents in Japan. In 1995, the student was apparently entrusted to the care of a relative in California and attended a private preparatory school. In July 1996, her parents arranged for the student to live with petitioner and his wife, who are the child's uncle and aunt.

In August 1996, petitioner and his wife submitted an application to register the student in respondent's district. By letter dated September 4, 1996, respondent's Director of Pupil Personnel Services notified them that the student was not entitled to attend school in the district because she was neither a resident of the district nor entitled to attend as a homeless child under the provisions of section 100.2(x) of the Commissioner's Regulations.

Thereafter, pursuant to petitioner's request, an administrative review of the determination was conducted on September 16, 1996. By letter dated September 25, 1996, the review officer issued her decision finding that the student was not entitled to attend school in the district, on the grounds that petitioner had failed to rebut the presumption that the student's residence was that of her parents in Japan.

Petitioner commenced this appeal on October 15, 1996 and requested interim relief to permit the student to attend school in respondent's district pending a final determination of the appeal. By letter dated October 30, 1996, my Office of Counsel advised petitioner that no stay order would be issued.

Petitioner contends that the student is "essentially" homeless since she allegedly cannot live in her parents' home because of "family stresses". Petitioner alleges that the student's parents have given him "full control" of the student and her assets.

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 to students whose parents or legal guardians reside within the district (Appeal of Brutcher, 33 Ed Dept Rep 56). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, rev'd on other gnds, 77 NY2d 552; Appeal of Simond, 36 Ed Dept Rep 117). However, this presumption may be rebutted by examining the totality of circumstances (Appeal of Ambris, 31 Ed Dept Rep 41), including whether there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Brutcher, supra; 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).

Upon my examination of the record, I find that petitioner has failed to rebut the presumption that the student's residence is with her parents in Japan. Petitioner alleges that the student was living with him and could not live with her parents because of "family stresses", that the student has "been ejected from her home by her father", and that the parents have surrendered parental control to petitioner. However, the preponderance of proof in the record establishes that the student is residing with petitioner only temporarily in order to finish high school.

In response to the question in the school registration form of why the child is not living with her natural parents, petitioner stated "[s]he likes to fulfill her dreams in learning about American Culture by continue [sic] her education here in the U.S." In response to the question of whether the relationship between petitioner and the student is temporary or permanent, petitioner while circling the word "permanent" on the application, further stated "[i]t is an arrangement until she graduates from the school she attends." Furthermore, petitioner, in a "custodian's affidavit" submitted with the registration form indicates that the mother ". . . desires her daughter to have a good education" and that while visiting petitioner and his family, she asked petitioner and his wife to "consider guardianship of [the student] until she completes her education." The student testified at the hearing that the reason she is here is because her father wanted her to learn English, that her parents had been asking her for a long time whether she wanted to go to the United States or to Taiwan to study, that her brother had gone to Taiwan to study and then returned to Japan, and that she would be going home to Japan for the summer months but would stay with petitioner until she finished high school.

Petitioner offers certain documents which he contends establish that the student's parents have given him full control of the student and her assets. However, the record does not support petitioner's contention. A letter from the student's mother, introduced at the hearing, specifies a "grant of temporary authority [emphasis added]. . . effective until terminated by either of the undersigned" which purports to give petitioner and his wife authority to make emergency health care decisions, to perform other responsibilities relating to the student's attendance at school, and to 'make all decisions'. A "Child Care Authorization" also introduced into evidence at the hearing similarly specifies a "grant of temporary authority [emphasis added]. . . effective until terminated by either of the undersigned" which purports to give petitioner and his wife the power to seek appropriate medical treatment and attention on behalf of the student, the power to make appropriate decisions regarding clothing, bodily nourishment and shelter, and 'all other powers necessary for the care of [the student].' Such documents do not establish the total and permanent transfer of custody and control required to rebut the presumption that the student's residence is that of her parents (Appeal of Brutcher, supra).

Nor is petitioner's submission of a "Deed of Guardianship" pursuant to Domestic Relations Law '81, in which the student's mother names petitioner as guardian and his wife as successor guardian of the student's person and property, dispositive, since it can become effective only upon the death or incapacity of the mother. Furthermore, such document may be legally ineffective to appoint petitioner and his wife as guardians because the student's father has not executed similar guardianship documents and the student's parents are not domiciliaries of New York State. Moreover, the "Durable Power of Attorney" signed by the student's mother merely creates a principal - agent relationship between the student's mother and petitioner and his wife and does not establish a relinquishment of care, custody and control of the student to petitioner and his wife.

Finally, the record indicates that the student's parents will be providing a substantial amount, if not most, of her financial support, including payments to petitioner and a monthly allowance to the student. These facts are inconsistent with a relinquishment of parental control (Appeal of Delgado, supra).

While the appeal must be dismissed, I note that the district may, in its discretion, allow the student to attend school as a non-resident with the payment of tuition, provided that it accepts non-residents on that basis.

THE APPEAL IS DISMISSED.

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