Decision No. 17,813
Appeal of MARYLOU LAWSON, on behalf of VICTOR KE, from action of the Board of Education of the Farmingdale Union Free School District regarding transportation.
Decision No. 17,813
(February 7, 2020)
Guercio & Guercio, LLP, attorneys for respondent, Reesa F. Miles, Esq., of counsel
TAHOE., Interim Commissioner.--Petitioner appeals a determination of the Board of Education of the Farmingdale Union Free School District (“respondent”) to deny Victor Ke (“the student”) transportation to a nonpublic school during the 2019-2020 school year. The appeal must be dismissed.
Petitioner states that she is the “host mom” of the student, who is a citizen of the People’s Republic of China living in the United States pursuant to a Class F-1 Visa (“F-1 Visa”). An F-1 Visa is issued to citizens of foreign countries who wish to enter the United States to attend certain schools, in this case Sappo School, a private high school located in Commack, New York, which has since relocated to Farmingdale, New York, and been renamed Journey Prep Academy (“the nonpublic school”). According to petitioner, the student resided with her in respondent’s district “from September 2017 to June 25, 2018 and again from August 2018 ... through the end of June 2019.” Petitioner also states that the student “intends to reside” with her in respondent’s district for the 2019-2020 and 2020-2021 school years. Petitioner indicates that the student “resides with his mother ... at Fujian [P]rovince ... for the months of July and August.” Petitioner additionally states that the student’s mother “has not surrendered parental control over [the student] to [petitioner].”
By email dated January 10, 2019, petitioner sought to register the student in respondent’s district for the purpose of receiving school bus transportation for the student to attend the nonpublic school, asserting that she was a person in parental relation to him at an address located within the district (“in-district address”). In support of her request, petitioner submitted a copy of the student’s F-1 Visa.
By letter dated March 5, 2019, respondent’s assistant to the superintendent for business denied petitioner’s request for transportation, on the basis that the student was not a legal resident of the district. This appeal ensued. Petitioner’s request for interim relief was denied on March 29, 2019.
Petitioner asserts that, because she is a legal resident of the district and cares for the student while he is present in the United States for the purpose of attending school, the student is a district resident entitled to transportation. Petitioner seeks a determination that the student is a resident of respondent’s district entitled to receive transportation.
Respondent argues that the appeal must be dismissed for failure to state a claim because it has not acted in an arbitrary and capricious manner and because, even if the student were a legal resident of the district, petitioner did not meet the statutory deadline for requesting transportation.
Pursuant to Education Law §3635(1)(a), a school district must provide transportation to “all children residing within the district to and from the school they legally attend,” so long as the distance between such child’s residence and school is within the statutorily prescribed limits. A district is thus not required by law to provide transportation to non-resident students (Appeal of G.S., 56 Ed Dept Rep, Decision No. 17,083; Appeal of Markarian, 47 id. 114, Decision No. 15,644; Appeal of Jeudy, 46 id. 512, Decision No. 15,579). As elsewhere in the Education Law, a child’s “residence” for the purpose of transportation is established by the child’s physical presence and intent to remain within the district (Appeal of J.E.C. Jr., 59 Ed Dept Rep, Decision No. 17,764; see generally Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385 ). 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 ; 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 ; 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). In addition, 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 Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726).
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).
On the record before me, petitioner has not carried her burden of establishing that there has been a total and permanent transfer of custody and control over the student from his parent to petitioner. By petitioner’s own admission, the student’s mother “has not surrendered parental control over [the student] to [petitioner].” In addition, as part of petitioner’s request for transportation, she submitted a copy of the student’s F-1 Visa. Pursuant to 8 USC §1101(a)(15)(F)(i), the student’s receipt of an F-1 Visa means that he is “[a]n alien having a residence in a foreign country which he has no intention of abandoning,” who is residing in the United States “temporarily and solely for the purpose of pursing ... a course of study ...” (see also Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764).
Although the Commissioner has held that a school district may not impose an irrebuttable presumption of residency based on a student’s visa status, such status is nevertheless relevant to a student’s intent to remain in the United States (see e.g. Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764, Appeal of Esposito, 57 Ed Dept Rep, Decision No. 17,415; Appeal of Plata, 40 id. 552, Decision No. 14,555). Here, the student’s visa status does not support a finding that the student intends to remain in respondent’s district as a permanent resident (Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764). Nor does petitioner offer any other evidence that would rebut the presumption that the student’s permanent residence is with his parent outside the district. Moreover, the affirmation from respondent’s counsel in opposition to petitioner’s stay request indicates that petitioner received $10,000 for hosting the student and that she does not claim him as a dependent on her tax return. Accordingly, on the totality of the record before me, I cannot conclude that there has been a total, permanent transfer of custody and control of the student to petitioner.
Therefore, the presumption that the student resides with his parent has not been rebutted and I cannot conclude that respondent’s determination that the student is not a district resident and therefore not entitled to transportation to the nonpublic school is arbitrary, capricious or unreasonable (see Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764, Appeal of Botsakos, 56 Ed Dept Rep, Decision No. 17,093).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
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