Appeal of PHILLIP DUHART and YEHIAH ISRAEL from action of the Board of Education of the City School District of the City of Middletown regarding residency.

Decision No. 16,565

(October 15, 2013)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Howard M. Miller, Esq., of counsel

KING, JR., Commissioner.--Petitioners Phillip Duhart and Yehiah Israel appeal the determination of the Board of Education of the City School District of the City of Middletown (“respondent”) that Yehiah is not a district resident. The appeal must be dismissed.

Petitioners claim that in or about 2011, as a result of conflict in the household, Yehiah left his mother’s residence in Massachusetts and came to New York State to stay with Duhart, his mother’s former husband. It is undisputed that Duhart resides in respondent’s district.

In September 2012, Yehiah applied for admission to respondent’s schools. At that time, Duhart submitted a Residency Questionnaire stating that Yehiah lives with him because he “wanted a change from Boston MA” and to “regain his focus on his education.” Duhart also indicated that he obtained permission from Yehiah’s mother to make medical and educational decisions for Yehiah, but that he did not provide for Yehiah’s health care or medical treatment at his expense.

Additionally, Yehiah submitted an Affidavit of Emancipation, signed and notarized on September 6, 2012, stating that he was 18 years old and that he chose to move in with his stepfather to finish high school. He indicated that his medical expenses were covered by his mother. Moreover, he indicated that his relationship with his mother was “very good” and that he had most recently visited her in the summer of 2012. He also indicated that his mother and Duhart would make educational, health and medical decisions for him while he attended school.

Further, Yehiah’s mother submitted a Parental Affidavit, sworn to by both her and Yehiah on September 1,2012, indicating that Yehiah was expected to live with Duhart “until [he] completes high school” and that she would continue to make any health care and/or medical treatment decisions for him.

By decision dated September 12, 2012, respondent’s superintendent denied Yehiah enrollment in its schools on the grounds that his mother, who resided in Massachusetts, had not relinquished custody and control of Yehiah, and that Yehiah was not legally emancipated. The superintendent found that Duhart did not have legal custody or guardianship of Yehiah pursuant to court order or otherwise; that Yehiah’s mother arranged for Yehiah to temporarily reside with petitioner solely for educational purposes; and that Yehiah’s mother would continue to pay for Yehiah’s medical expenses, demonstrating her continued financial support.

The superintendent further indicated, that although Yehiah was beyond the compulsory school age, he did not satisfy the requirements for proving emancipation from his mother, i.e., that he was living separate and apart from his mother in a “manner inconsistent with parental custody and control,” that he was not receiving any financial support from his mother, and that he had no intent to return home. This appeal ensued. Petitioners’ request for interim relief was denied on October 11, 2012.

In the petition, Yehiah asserts that he left his mother’s residence in 2011 and does not intend to return. He also indicates that he has applied for temporary assistance with the Department of Social Services. Petitioners assert that Yehiah began residing with Duhart at the in-district address after he left his mother’s Massachusetts residence and submit a lease agreement from June 15, 2012 to June 14, 2013, listing Yehiah as a tenant at such address. Petitioners also submit copies of Yehiah’s birth certificate, passport, and school identification card.

Respondent contends that the appeal must be dismissed because petitioners have not rebutted the presumption that Yehiah resides with his mother in Massachusetts. Respondent maintains that, although Yehiah lives with Duhart in the district and Duhart continues to play an active role in Yehiah’s life as a “surrogate father,” he is not Yehiah’s biological or adoptive parent and petitioners have failed to establish that there has been a permanent transfer of custody and control of Yehiah to Duhart. Finally, respondent contends that Yehiah is not emancipated from his mother.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No.15,924). “Residence” for purposes of Education Law §3202is 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 Naab, 48 Ed Dept Rep 484,Decision No. 15,924).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773) or that the student is emancipated from his or her parents (Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,190; Appeal of Humphrey, 43 id. 117, Decision No. 14,940). For purposes of establishing residency under Education Law §3202, a student is considered emancipated if he or she is beyond the compulsory school age, is living separate and apart from his or her parents in a manner inconsistent with parental custody and control, is not receiving financial support from his or her parents, and has no intent to return home (see Appeal of a Student with a Disability, 50Ed Dept Rep, Decision No. 16,190; Appeal of Humphrey, 43id. 117, Decision No. 14,940).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed DeptRep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828). 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 White, 48 Ed Dept Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Based on the record before me, I find that, although Yehiah is over 18 years old, petitioners have failed to establish that he is emancipated from his mother and have therefore failed to rebut the presumption that he resides with her in Massachusetts. The record reflects that Yehiah’s mother not only continues to pay for his medical

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expenses, but that she also makes educational and medical decisions on his behalf. Therefore, based on the record before me, I cannot find that respondent’s decision that Yehiah is not an emancipated minor was unreasonable, arbitrary or capricious.

Nor can I conclude that respondent’s determination that there has not been a total and permanent transfer of custody and control to Duhart is arbitrary and capricious. As noted above, 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 Polynice, 48 Ed DeptRep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773). 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 Polynice, 48 Ed Dept Rep490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773).

Here, petitioners have failed to show that Yehiah’s mother has relinquished full custody and control of Yehiah to Duhart. To the contrary, the record reflects that Yehiah’s mother maintains a relationship with him, cares for him during visits, makes educational and medical decisions for him, and provides for his medical care and treatment. Petitioners fail to provide any evidence in the petition that Duhart supports Yehiah without any support from his mother. To the contrary, Duhart admits that Yehiah’s mother has retained some control of Yehiah, and that Yehiah came to live with him for educational purposes, i.e., “to complete school.” Therefore, I cannot find that respondent’s decision that Yehiah is not a district resident was arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that Yehiah has the right to reapply for admission to respondent’s schools on his own behalf until he reaches 21, particularly if his living situation does in fact change, and to submit any documentary evidence for respondent’s consideration. Additionally, Duhart may also reapply for admission on Yehiah’s behalf and may submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED. END OF FILE