Decision No. 17,768
Appeal of LUCY MENZER, on behalf of JADEN JERNIGAN, from action of the Board of Education of the Bethpage Union Free School District regarding residency.
Decision No. 17,768
(October 11, 2019)
Jaspan Schlesinger LLP, attorneys for respondent, Laura J. Granelli and Edward H. Grimmett, Esqs., of counsel.
BERLIN., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Bethpage Union Free School District (“respondent”) to deny her request for transportation on behalf of Jaden Jernigan (“the student”). The appeal must be dismissed.
According to the record, petitioner resides within respondent’s district, and the student’s parents live outside the country. Petitioner asserts that the student’s parents designated her as “the person in parental relationship to their son.” The record reflects that, in June 2018, petitioner requested that respondent provide the student with transportation to St. Anthony’s High School, a nonpublic high school.
In July 2018, petitioner submitted registration paperwork on the student’s behalf to respondent. According to respondent’s assistant superintendent of pupil personnel services (“assistant superintendent”), the only evidence provided to her at that time concerning transfer of custody or control of the student was a document captioned “Non UTP temporary custody agreement” (the “temporary custody agreement”).,
By letter dated July 31, 2018, the assistant superintendent advised the student’s parents of her determination that the student was not a district resident and, thus, ineligible to attend the district’s schools or receive transportation. The letter indicated that, if the parents wished to contest this determination, they must request a conference. Petitioner, with the student’s parents’ authorization, requested a conference, which was held on October 25, 2018. Petitioner, the superintendent, and the assistant superintendent attended. According to respondent, petitioner indicated at the conference that her custody of the student was limited in duration and for the sole purpose of enabling the student to attend St. Anthony’s High School. Petitioner also submitted a “family designation form” executed by the student’s parents on August 14, 2018, in support of her claim of custody and control (see General Obligations Law §5-1551).
By letter dated October 29, 2018, the superintendent upheld the assistant superintendent’s determination that the student was not a district resident and, thus, not entitled to receive transportation. The superintendent concluded that petitioner did not “have total and permanent custody and control of [the student].” This appeal ensued.
Petitioner contends that the student’s parents designated her as the person in a parental relationship with the student and as his custodian. Petitioner claims that such guardianship is permanent “for all intents and purposes ... because [the student] ... will continue to live with” her until he turns 18 years old. Petitioner also maintains that she exercises control over the student’s activities and behavior, makes medical and educational decisions, and provides the student with shelter. Petitioner also argues that she provided a reasonable excuse for submitting her transportation request after the April 1 deadline; namely, that the student’s parents did not ask her to be the student’s custodian until June 2018. For relief, petitioner seeks a determination that the student is a resident of respondent’s district; “[a] reduction in the petitioner’s school taxes commensurate with the cost of transporting” the student; an admission that “certain communications” from the district “contain[ed] erroneous information”; and “[a] directive to the district to desist from coercive tactics against future petitioners.”
Respondent contends that the appeal must be dismissed as untimely and for failure to join the student’s parents, who are necessary parties. On the merits, respondent argues that petitioner has failed to demonstrate that the student’s parents effectuated a complete transfer of custody and control of the student to her. Respondent also argues that it acted within its discretion in denying petitioner’s late transportation request, and that petitioner did not present a reasonable excuse for such a late request.
Respondent argues that petitioner’s reply was late and cannot be considered. A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803). Petitioner admits that she submitted a late reply in this matter but argues that such delay should be excused because she had to attend a wedding out of town that included “pre and post wedding celebrations.” Petitioner further claims that the prospect of replying to respondent’s answer was “daunting.” I do not find petitioner’s explanations compelling, particularly in light of the fact that a party may request an extension of time to submit a reply prior to the expiration of the time to serve such reply (8 NYCRR §276.3). Therefore, I have not considered petitioner’s late reply (cf. Appeal of G.J.-F., 58 Ed Dept Rep, Decision No. 17,608).
Respondent also contends that the appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). In this case, respondent maintains that it denied petitioner’s claim for transportation in the assistant superintendent’s July 31, 2018 letter. However, as described more fully above, petitioner requested, and was eventually granted, a conference with the superintendent to discuss this determination. Thereafter, the superintendent issued a written determination on October 29, 2018 wherein respondent acknowledged that petitioner had “30 days of the date of [such letter]” to file an appeal under Education Law §310. Petitioner served the instant petition fewer than 30 days later. Therefore, I find the appeal was timely (see Appeal of Clarey, 59 Ed Dept Rep, Decision No. 17,703; Appeal of Skiff, 57 id., Decision No. 17,191).
Respondent also argues that the appeal should be dismissed for failure to join the student’s parents, who are necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and the petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). The record in this appeal contains evidence indicating that the student’s parents support petitioner’s appeal. It is evident that the parents’ desire is to have the student receive transportation from respondent’s district to a nonpublic school and, therefore, the parents’ rights would not be adversely affected by a determination in petitioner’s favor (see Appeal of Schillaci, 53 Ed Dept Rep, Decision No. 16,570; Appeal of Riccinto, 46 id. 39, Decision No. 15,435). Therefore, I decline to dismiss the appeal on this basis.
Moreover, to the extent petitioner requests transportation, the appeal is moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). Transportation to a nonpublic school must be requested on a yearly basis and no later than the first day of April preceding the next school year (Education Law §3635). Petitioner requested transportation for the 2018-2019 school year, which has ended. Therefore, the issue of transportation is moot (see Education Law §3635(2); Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).
However, even if the appeal were not dismissed as moot, Education Law §3202(1) provides, in pertinent part, as follows:
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 §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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924). 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).
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). 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 Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).
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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).
Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 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 Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).
On this record, petitioner has not established that the student’s parents effectuated a total and permanent transfer of custody and control. The family designation form executed by the student’s parents on August 14, 2018, affords petitioner certain rights, including the authorization to consent to the student’s general health and dental care, medical procedures, and participation in school programs. The form also affords petitioner the ability to review school records and enroll the student in school. However, the form indicates that the parents were only “temporarily entrusting” the student’s care to petitioner from August 2018 through June 2020. Similarly, the temporary custody agreement submitted to respondent in July 2018 provided temporary authorization for petitioner to make certain decisions from August 15, 2018 through June 30, 2020. Both forms gave the student’s parents the ability to terminate the authorizations at any time prior to their expiration. The time-limited and conditional nature of these documents prevent them from being considered a total transfer of custody and control to petitioner (Appeal of Romero, 58 Ed Dept Rep, Decision No. 17,599; Appeal of Burova, 56 id., Decision No. 16,979; Appeal of Polynice, 48 id. 490 Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773). Thus, these documents do not demonstrate the student’s intent to permanently reside in the district; they merely give petitioner the authority to exercise certain responsibilities until June 2020 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, the record supports a finding that the student’s parents continue to provide financial support to the student. According to both the superintendent and assistant superintendent, petitioner indicated at the October 25, 2018 conference that she “received financial support” from the student’s parents for housing. Petitioner does not address this allegation directly in the petition, merely stating that she “is supporting [the student] ... and provides food and shelter,” and that, while his parents “purchased toiletries for him[,] [h]e has not needed anything else.” Thus, I find that the student’s parents continue to provide financial support for the student, which further supports a determination that the student’s parents have not effectuated a complete transfer of custody and control of the student (see Appeal of Wu, 51 Ed Dept Rep, 16,300; Appeal of Cheng, 47 id. 366, Decision No. 15,726).
The decisions relied upon by petitioner are distinguishable from the instant appeal. For example, in Appeal of Palmieri (45 Ed Dept Rep 174, Decision No. 15,293), the Commissioner held that the petitioner, grandparent to the two students at issue, rebutted the parental presumption of custody and control where: (1) the students, 15 and 17 at the time of the decision, had lived with petitioner since birth; (2) the student’s birth parents effectuated a complete transfer of custody or control to petition; and (3) custody was transferred to the petitioner because the students’ father left the district to seek employment in Kentucky (the students’ mother had previously left the district residence). Here, by contrast, the student’s parents temporarily transferred custody and control of the student to petitioner.
Moreover, to the extent petitioner seeks a “reduction in [her] school taxes commensurate with the cost of transporting [the student],” the Commissioner has no authority to award monetary damages, costs, or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888; see also Appeal of R.H., 56 id., Decision No. 17,117).
Finally, to the extent petitioner suggests that respondent “allowed a non-resident to enroll his child in Bethpage High School” and that such decision set “precedent” that binds respondent, petitioner has not explained the nature of this allegation or its applicability to the instant dispute. However, even assuming, arguendo, that respondent provided transportation to a similarly-situated student in the past, prior decisions of a district do not bind or estop the district from making a different determination. Equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Appeal of Argueta, 53 Ed Dept Rep, Decision No. 16,618 Appeal of Perez, 42 id. 71, Decision No. 14,779; Appeal of Holzer, 37 id. 549, Decision No. 13,924).
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 The form makes reference to the organization “UTP High Schools” which, according to the record, “offers specialized programs for international students in select US High Schools.” One such school is St. Anthony’s High School, the school attended by the student.
 On appeal, petitioner contends that, in June 2018, a “clerk” employed by the school district “indicated she had checked with the then [s]uperintendent” and approved petitioner’s request for transportation. Respondent denies this contention.
 Similarly, to the extent petitioner contends that a “clerk” “verbally approved” her transportation request in June 2018, any such representation would not bind the district.