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Decision No. 13,833

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Fayetteville-Manlius Central School District regarding residency.

Decision No. 13,833

(September 11, 1997)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Fayetteville-Manlius Central School District ("respondent") that his daughter is not a resident for the purpose of attending its schools tuition free. The appeal must be dismissed.

Petitioner resides with his fifteen year old daughter within the Jamesville-Dewitt Central School District. His daughter resided with him there until July 3, 1995 and then again from March 10, 1997. His daughter is classified as a child with a disability due to autism and epilepsy, and has an individualized education program (IEP) developed by respondent's committee on special education (CSE).

During the 1995-96 school year, petitioner's daughter lived within respondent's district with a licensed practical nurse who provided the student with medical services funded by Medicaid and attended respondent's schools until May 1996. Respondent agreed to treat the student as a resident for that period based on a sworn statement submitted by her father transferring decision-making authority to the nurse, who also apparently managed the child's social security benefits without financial support from petitioner. Petitioner's daughter left this residence to live outside respondent's district with a different nurse in May 1996, the same month petitioner appeared at a meeting of respondent's CSE to advocate for his daughter. The second nurse later relocated from Lyons, New York into respondent's district in order to accommodate petitioner's intent to maintain the student there.

When respondent learned of these developments, petitioner was informed by letters dated July 18 and August 5, 1996 from the principal of his daughter's middle school and deputy superintendent, respectively, that the child was no longer a resident of the district and would be removed from its register of students. Petitioner was permitted an opportunity to discuss the determination at a meeting on August 15, 1996 at the district office but submitted no written information to support his position. Specifically, petitioner executed no transfer of custody to the second nurse comparable to that for the first nurse. Respondent's attorney, who also attended that meeting, later provided petitioner a written invitation to address respondent at its executive session on August 26, 1996. Respondent's deputy superintendent next informed petitioner in a letter dated August 22, 1996 of his determination that the child was not a resident based on petitioner's failure to provide sufficient proof that he had relinquished custody and control over educational decisions regarding his daughter. The invitation to petitioner to address the board was renewed at that time. By letter dated August 28, 1996, respondent's superintendent informed petitioner that respondent had affirmed the superintendent's determination. The basis for respondent's determination was that petitioner failed to provide sufficient proof that he relinquished custody and control over educational decisions for his daughter based on his assertion that such decisions were to be made only with his participation and consent.

Petitioner commenced this appeal on September 30, 1996 and requested a stay pursuant to 8 NYCRR 276.1. On October 17, 1996, I issued an order requiring respondent to admit petitioner's daughter to its schools tuition free, pending a final decision on the merits. On March 10, 1997, petitioner's daughter returned to live with him in the Jamesville-Dewitt Central School District.

Petitioner seeks an order that his daughter is a resident of respondent's district and is entitled to attend its schools without the payment of tuition. He admits that he did not execute a transfer of custody to the second nurse but contends that respondent should provide the same consideration as for the first nurse because the circumstances are otherwise identical. Petitioner contends also that the Fourteenth Amendment of the Constitution precludes respondent from requiring him to yield custody and control for his daughter, whom he is incapable of supporting on a daily basis, in order to establish her residency. He further contends that his daughter is entitled to a continuing free appropriate public education in respondent's district under the Individuals with Disabilities Education Act (IDEA) because respondent waived its objection to his daughter's residency status by providing her an IEP during the 1996-97 school year.

Respondent contends that petitioner's continued assertion of parental control over his daughter's educational decisions, together with his failure to present sufficient written proof that he surrendered parental control generally, is inconsistent with his claim that she resides within respondent's district. Respondent also contends that petitioner's admission -- that the second nurse moved into respondent's district to accommodate petitioner's preference for the district's educational programs -- defeats his claim because living with others to take advantage of the services of a particular school district does not establish the child's residence in that district. Respondent contends further that petitioner's appeal before the Commissioner of Education is brought in an improper forum to litigate a novel question of constitutional law.

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

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 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 Brutcher, supra; 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 Brasile and Bradford, 35 Ed Dept Rep 456; Appeal of Gorrasi, 35 id. 68; Appeal of Garretson, 31 id. 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). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Tunstall, 27 Ed Dept Rep 144), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Garretson, supra; Appeal of Pernell, 30 Ed Dept Rep 380). 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, supra; Appeal of Ritter, 31 Ed Dept Rep 24; Appeal of McMullen, 29 id. 310).

While petitioner's daughter is entitled to a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. "1401 et seq and Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. "794, both the IDEA and Section 504 presume that a child's residence is that of her parents, unless the child has been abandoned and is a ward of the state, and it is that home district which is required to provide the child with a FAPE (Catlin v. Sobol, 93 F.3d 1112, 1123 (2d Cir. 1996).

During the 1996-97 school year, the record reflects that petitioner failed to transfer custody and control of his daughter to the second nurse and continued to exercise decision-making authority over her education. In addition, the sole reason the second nurse moved her residence into respondent's district was to accommodate petitioner's preference for schools. For the period since March 10, 1997, by petitioner's own admission, his daughter has resided with him in the Jamesville-Dewitt Central School District. Therefore, petitioner's daughter is not a resident of the Fayetteville-Manlius Central School District and is not entitled to attend its public schools tuition free. To the extent petitioner raises constitutional claims, it is well settled that Education Law "310 is not the proper forum to decide novel questions of constitutional law (Application of Lupiani, 36 Ed Dept Rep 355; Appeal of Weiss, 35 id. 519; Appeal of Silano, 33 id. 20; Appeal of Martin, 32 id. 381).