Appeal of RAMÓN ROMERO on behalf of his niece CARLOTA, from action of the Board of Education of the City School District of the City of Rye regarding residency.

Decision No. 17,599

(March 12, 2019)

Ingerman Smith, LLP, attorneys for respondent, Jeffrey J. Cravens, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rye (“respondent”) that his niece, Carlota, is not a district resident.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district and Carlota’s uncle.  According to the record, Carlota is a United States citizen and her parents are citizens of Spain.  At all relevant times to this appeal, Carlota and her parents resided in Spain.

In an email to respondent’s superintendent dated June 13, 2018, Carlota’s father indicated that he intended to “send” Carlota to her uncle’s residence, which is located in respondent’s district, and requested that Carlota be allowed to attend ninth grade in respondent’s high school for the 2018-2019 school year.  Carlota’s father indicated that he would provide proof of Carlota’s uncle’s residency within the district, Carlota’s United States birth certificate and passport, and a power of attorney naming Carlota’s uncle and his sister-in-law as Carlota’s legal guardians “for the next school year.”

By letter dated June 19, 2018, respondent’s superintendent indicated that Carlota could not be admitted to its schools as a district resident because “it appear[ed] that this [wa]s a temporary situation[,] and that [petitioner] would be serving as Carlota’s legal guardian on a temporary basis.”  The superintendent further informed Carlota’s father that “a student moving into the [d]istrict without his/her parents for the primary purpose of attending [d]istrict schools shall be classified as a non-resident and will be required to pay tuition.”  The superintendent indicated that Carlota’s father could “apply for non-resident status” by completing an application and identified the current tuition rate for the 2018-2019 school year.

Despite the superintendent’s determination, on or about July 30, 2018, Carlota’s father attempted to register the student in respondent’s district using the district’s online registration system.  Using this system, Carlota’s father submitted a revocable “Limited Power of Attorney For Care of Minor Child” (“limited power of attorney”) which designated petitioner and his wife as Carlota’s attorneys-in-fact beginning on July 2, 2018, and terminating on July 2, 2023.  The limited power of attorney granted petitioner medical, educational and disciplinary authority over Carlota.

By letter dated August 6, 2018, the superintendent informed petitioner and Carlota’s father that, in accordance with his June 19, 2018 letter, Carlota did not meet the residency requirements of the Education Law and could not attend respondent’s schools tuition-free.  The superintendent again noted that Carlota could be enrolled in respondent’s district as a “non-resident tuition student.”  This appeal ensued.  Petitioner’s request for interim relief was denied on September 26, 2018.

Petitioner contends that Carlota, a United States citizen, plans to reside with him although “[s]he has not established residency yet.”  Petitioner maintains that he will support Carlota by providing food, shelter and clothing and will exercise control over her activities and behavior as “stated by her parents” in the limited power of attorney.  Petitioner asserts that Carlota is not moving in with him to take advantage of district schools.  Petitioner seeks a determination that Carlota is a district resident entitled to attend respondent’s schools without the payment of tuition.

Respondent contends that Carlota is not a district resident and that Carlota intends to reside with petitioner for the sole purpose of taking advantage of respondent’s schools.  Respondent also asserts that there has not been a total and permanent transfer of custody and control over Carlota from her parents to petitioner.

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has failed to meet his burden of proving there has been a total and permanent transfer of custody and control over Carlota from Carlota’s parents to petitioner.  On July 30, 2018, following respondent’s denial of admission to Carlota, Carlota’s father submitted the limited power of attorney to the district to support his claim that he and Carlota’s mother surrendered parental control to Carlota’s uncle, who supports and exercises control over Carlota.  However, the limited power of attorney expires on July 2, 2023, and may be terminated at any time prior thereto.  The time-limited and conditional nature of the document prevents it from being considered a total transfer of custody and control to petitioner (Appeal of Burova, 56 Ed Dept Rep, Decision No. 16,979; Appeal of Polynice, 48 id. 490 Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  Additionally, such document does not demonstrate Carlota’s intent to permanently reside in the district; it merely gives petitioner the authority to exercise certain responsibilities until July 2, 2023 at the latest (see Appeal of Burova, 56 Ed Dept Rep, Decision No. 16,979; Appeal of C.S., 54 id. Decision No. 16,697).

Additionally, to the extent that petitioner bases his request for relief on Carlota’s physical presence in respondent’s district, there is no evidence in the record indicating that Carlota is physically present in respondent’s district.  Petitioner admits in the petition that Carlota “has not established residency yet,” and that she “will reside” in respondent’s district at some future time.  Even assuming, arguendo, that Carlota physically resided with petitioner in respondent’s district, I would find that the sole reason Carlota resided with petitioner was to take advantage of respondent’s schools.  In his June 13, 2018 email, Carlota’s father asserted that he wanted Carlota to reside in respondent’s district to “give her a chance to know her country” and “for her to go through 9th grade at Rye High School.”  While petitioner admits that Carlota is moving to the United States to take advantage of the public schools, he argues that he and Carlota’s parents have “no specific interest in ... respondent’s district” as opposed to any other public school district in the United States.  However, the relevant inquiry is whether a student is residing with someone other than a parent or legal guardian to take advantage of the schools of the district, and there is no requirement that, for example, a parent or guardian have a “specific interest” in the district of which they are seeking to take advantage (Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726).  Therefore, the record supports a finding that Carlota intends to stay with petitioner solely to attend respondent’s school district tuition-free (see Appeal of Guevara, 54 Ed Dept Rep, Decision No. 16,634; Appeal of Schillaci, 53 id., Decision No. 16,570).

I note that previous Commissioner’s decisions have found that, where there are overriding reasons for establishing one’s residence apart from one’s parents, aside from taking advantage of the educational programs of the district, and all the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (see e.g. Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208).  However, here, petitioner has not identified any reason why the student is not residing, or cannot reside, with her parents in Spain.  Accordingly, on this record, petitioner has not rebutted the presumption that Carlota’s residence is with her parents in Spain and I find no basis upon which to set aside respondent’s determination (see Appeal of Shillaci, 53 Ed Dept Rep, Decision No. 16,570; Appeal of Arreguin, 50 id., Decision No. 16,088; Appeal of Brunot, 35 id. 402, Decision No. 13,584).  

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on Carlota’s behalf at any time, should circumstances change, and to present any documentary evidence for respondent’s consideration regarding legal transfer of custody or other bona fide reason(s) for establishing residence apart from her parents consistent with 8 NYCRR §100.2(y) as amended, effective July 1, 2015.

THE APPEAL IS DISMISSED.

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