Appeal of a STUDENT WITH A DISABILITY, by her aunt and uncle, from action of the New York City Department of Education regarding residency.

Decision No. 15,723

(February 1, 2008)

Educational Advocacy Service, attorneys for petitioners, Anton Papakhin, Esq., of counsel

New York City Law Department, attorneys for respondent, Emily R. Goldman, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the New York City Department of Education (“respondent”) that their niece is not a district resident.  The appeal must be sustained.

Petitioners’ niece, a student with a disability, was abandoned by her mother at birth.  When the student was two years old, her grandmother, a resident of respondent’s district, began caring for her.  Pursuant to her individualized education program (“IEP”), on April 17, 2003, the student began receiving behavior modification treatment and special education at the Judge Rotenberg Educational Center, Inc. (“JRC”), a residential center in Massachusetts.  Upon the student’s admission to JRC, respondent began paying her tuition.

While at JRC, the student returned periodically to her grandmother’s residence to visit with family and friends.  On March 19, 2004, the student’s grandmother was appointed as her permanent guardian.  As the student’s grandmother became elderly, she asked her son, the student’s uncle and a petitioner in this appeal, to help with the student’s care.  The student’s uncle, a North Carolina resident, was appointed as her permanent guardian on April 23, 2006.  The student’s grandmother died in early 2007.[1]

By letter dated July 12, 2007, respondent notified the student’s uncle that based on his mother’s death, it no longer considered the student a district resident and would be closing her case.  On July 31, 2007, the Massachusetts Probate and Family Court issued a decree of temporary guardianship over the student to her aunt, who is a petitioner in this appeal and a resident of respondent’s school district.  The decree stated that the aunt’s guardianship would be exercised “in conjunction with” the student’s uncle.  This appeal ensued.  Petitioners’ request for interim relief was granted on August 28, 2007.

Petitioners argue that the student is a district resident and is, therefore, entitled to programs and services as a resident student.  As support for their argument, petitioners submitted a decree of permanent guardianship issued to the student’s aunt on September 25, 2007 by the Massachusetts court.  Petitioners contend that because the student’s aunt is a co-guardian, the student is entitled to enroll in the school district in which her aunt resides.  Additionally, petitioners claim that the fact that the student does not live with her aunt is not evidence of non-residence since she lives in a 24-hour treatment center in Massachusetts.

Respondent argues that petitioners have not established that the student resides with her aunt within its school district and that its residency determination was therefore reasonable.  Respondent maintains that the September 25, 2007 decree of permanent guardianship issued to the aunt is insufficient to establish the student’s residency in the district.  As support for its position, respondent cites a progress report from JRC stating that the student “went home to her uncle’s” in December 2006 and that her uncle “intends to visit [JRC] to become ... trained in order to safely have [the student] home for future visits.”

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 to students whose parents or legal guardians reside within the district (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

Custody may be legally transferred from a parent or guardian to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction.  Where a court of competent jurisdiction has legally transferred custody of a child, and the child actually lives with the court-appointed guardian, the Commissioner will accept the court’s order as determinative for residency purposes, and will not look behind the court’s decision to determine whether the custody transfer is bonafide (Appeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412).  This approach recognizes that a change in custody is a serious, life-changing event for all involved based on factors not always apparent in the context of a residency appeal to the Commissioner.  Any objection to the legitimacy of the transfer should be made before the court in a custody proceeding, not in a subsequent educational appeal to the Commissioner of Education (Appeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412).

The September 25, 2007 decree names the student’s aunt as permanent guardian “of the person of” the student in conjunction with the student’s uncle and also states, “It is further ordered that the Permanent Guardian shall have the authority to monitor the administration of a Behavior Modification Treatment Plan....”  Respondent claims that the language of the decree gives the student’s aunt only the authority to monitor the student’s behavior modification treatment plan and, as such, is insufficient to establish the student’s residency in the district.

I disagree.  The plain language of the decree states that the student’s aunt is to act as guardian “over [her] person” and does not, as respondent argues, limit the aunt’s guardianship to monitoring the student’s treatment at JRC.  Rather, in addition to this general grant of guardianship over the student’s person, the student’s aunt is “further” vested with the authority to monitor the student’s treatment plan at JRC.  Furthermore, the decree granting permanent guardianship to the student’s uncle contained identical language. 

In situations where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621).  Similarly, where non-parents share joint custody or guardianship and assume responsibility for the child, they are entitled to make the decision regarding the child’s residency.  In this case, the student’s aunt and uncle have been named co-guardians with shared responsibility for the student’s person and treatment.  Therefore, the fact that the student maintains a relationship with her uncle, a North Carolina resident, does not negate the decision made by petitioners as her co-guardians that that her residence shall be with her aunt in respondent’s district.

Because the decree is clear on its face, I will accept it as determinative for residency purposes.  Therefore, I find that the student is a resident of respondent’s district and is entitled to receive programs and services as a resident student.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow the student to attend school in the City School District of the City of New York without the payment of tuition and treat the student as a district resident for the receipt of programs and services.

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