Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Rondout Valley Central School District regarding residency.

Decision No. 17,912

(August 19, 2020)

Legal Services of the Hudson Valley, attorneys for petitioner, Andrew L. Lessig, Esq., of counsel

Law Offices of Guercio & Guercio, LLP, attorneys for respondent, Kathy A. Ahearn, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Rondout Valley Central School District (“respondent”) that her granddaughter (“the student”) is not a district resident eligible to attend the district’s schools tuition-free.  The appeal must be dismissed.

Petitioner and her husband, the student’s biological grandparents, adopted the student in 2007 and are her legal, adoptive parents.  They reside outside of respondent’s district.

Prior to the events giving rise to this appeal, the student was enrolled in respondent’s schools.  Respondent undertook an investigation of the student’s residency in the summer of 2019.  By letter dated August 27, 2019, respondent determined that the student must enroll in the school district where petitioner resides.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 16, 2019. 

Petitioner argues that the district failed to provide her with an opportunity to challenge the district’s residency determination or advise her of her right to appeal as guaranteed by 8 NYCRR §100.2(y).  She also argues that the student should be entitled to attend respondent’s schools because the student resides in respondent’s district with petitioner’s niece – the student’s cousin (“the cousin”) – who is the student’s “de facto” parent.  Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent argues that the appeal must be dismissed as untimely.  Respondent also argues that the student is not a district resident because there has been no total transfer of custody and control from the petitioner to the cousin. 

With respect to respondent’s argument that the appeal is 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).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Funderburke-Ivey, 57 Ed Dept Rep, Decision No. 17,241; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).

Respondent determined that the student could not attend its schools as a district resident on August 27, 2019, and petitioner received the letter memorializing such determination on September 1, 2019.  The petition was not filed until October 8, 2019, which is more than 30 days thereafter.  Petitioner admits that her appeal was not filed in a timely manner but asserts that the delay should be excused because respondent did not advise her of her right to appeal in its exclusion letter.

I agree with petitioner that respondent’s determination of non-residency did not comply with the procedures outlined in 8 NYCRR §100.2(y).  Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Burgess, 57 Ed Dept Rep, Decision No. 17,178; Appeal of Clark, 46 id. 143, Decision No. 15,468).  The regulation does not require a formal hearing or representation by counsel (Appeal of Burgess, 57 Ed Dept Rep, Decision No. 17,178).

The record does not contain any evidence that respondent provided petitioner with an opportunity to submit information concerning the student’s right to attend school in the district.  Moreover, respondent’s determination letter did not contain a statement regarding the right to appeal the determination to the Commissioner.  In light of this noncompliance, as well as the fact that the Commissioner has excused delays in residency cases where, inter alia, the delay is de minimis and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy, I decline to dismiss the appeal as untimely (see Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of Faucett, 38 id. 117, Decision No. 13,996).  I also remind respondent to comply with all requirements outlined in Commissioner’s regulation §100.2(y).

Turning to the merits, 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 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).

Initially, petitioner complains that she was not afforded an opportunity to submit information concerning the student’s right to attend school in the district prior to the student’s exclusion.  As indicated above, respondent did not apprise petitioner of this right or, in fact, afford her such an opportunity.  However, the appropriate remedy for respondent’s failure to comply with this requirement would be to remand the matter to respondent for further development, not, as petitioner suggests, a determination that the student is a district resident (see Appeal of Leach, Jr., 58 Ed Dept Rep, Decision No. 17,653).  Therefore, because the matter is now before me and petitioner has had ample opportunity to present evidence in support of her claim, I will address the merits of her claim (see e.g. Appeal of D.P., 54 Ed Dept Rep, Decision No. 16,673; Appeal of Butler and Durham, 50 id., Decision No. 16,103).

Petitioner maintains that the student has continuously lived with the cousin in respondent’s district since 2009.  She states that, while she is active in the student’s life, the student refers to the cousin as “Mom” and the cousin has acted as the student’s mother since 2009.  In support of the petition, petitioner submits an affidavit from the cousin.

In her affidavit, the cousin explains that she has one biological child, who is the same age as the student.  She states that the family decided in 2009 that her child and the student should grow up together as siblings and attend school together.  According to the cousin, the student has lived with her in respondent’s district and attended respondent’s schools since 2009.  The cousin explains that, when the student enrolled in the district in 2009, respondent requested that the family provide a notarized statement explaining that, while petitioner is the student’s legal parent, petitioner wished for the cousin to be regarded as the student’s mother for all practical purposes.  The cousin states that, after they submitted such an affidavit, respondent permitted the student to enroll.  She explains that respondent did not raise concerns about the student’s residency until 2017, when they were required to submit another notarized statement.  The second notarized statement, which petitioner has provided in support of her appeal, was executed by petitioner and her husband on November 16, 2017 and states:

We the adoptive parents of [the student] give permission to [the cousin] and [her partner] to have guardianship for [the student] and be allowed to obtain medical and school records along with ourselves.

According to the cousin, the student was permitted to enroll and attend respondent’s schools for the 2017-2018 school year.  She states that the district treated her as the student’s parent and guardian from 2009 until August 2019.  She received all communications from respondent, such as the student’s report cards.

The cousin states that the petitioner and her husband have offered greater assistance to the student since 2017 to support the student’s emotional health.  The cousin explains that they take care of the student, who sometimes stays with them, and take her to medical appointments when it is not possible for the cousin or her partner to do so due to work obligations.  

Respondent argues that the student is presumed to reside with her legal parents – petitioner and her husband – who live outside of its district.  According to respondent, petitioner has failed to demonstrate that she has executed a total transfer of custody and control of the student to the cousin so as to establish the student’s residence in the district.  In support of its position, respondent indicates that petitioner has attended Committee on Special Education (“CSE”) meetings on the student’s behalf and visited the school numerous times for matters involving the student.  Respondent also submits an affidavit from an employee who works in the attendance office, who avers that, during the 2018-2019 school year, she saw petitioner and the student three or four times per week in the attendance office.  The employee further states that petitioner regularly picked the student up from school and returned with the student for after-school activities.  According to her review of district attendance records, petitioner picked the student up to attend medical appointments four times during the 2018-2019 school year.  The employee also states that she saw petitioner visit the school to drop off medications for the student on several occasions. 

Respondent additionally submits an affidavit from its residency assistant, who indicates that she reviewed the student’s residency in the summer of 2019.  According to the residency assistant, she spoke with the cousin by telephone on or about August 27, 2019 and, during the phone call, the cousin admitted that the student was living with petitioner, outside of the district.  The residency assistant explains that the cousin told her that petitioner wanted the student to attend respondent’s district, rather than the school district where petitioner resides, so that the student could participate in a Therapeutic Intervention Program offered by respondent’s district.  In this conversation, according to the residency assistant, the cousin confirmed that petitioner “still had” legal custody of the student.  The residency assistant explains that she thereafter spoke with petitioner by telephone, who confirmed that the student “was, in fact, living with her.”  The residency officer further indicates that petitioner stated that it was “her preference” for the student to attend respondent’s district “because it offered a Therapeutic Intervention Program.”

On this record, petitioner has failed to meet her burden to prove that respondent’s determination was arbitrary and capricious.  Specifically, petitioner has not rebutted the presumption that the student lives with her outside of the district.  The notarized statement from 2017 does not represent a total, and presumably permanent, transfer of custody and control of the student to the cousin.  Rather, it gives permission to the cousin to be a guardian of the student and have access to the student’s medical and school records “along with” petitioner and her husband.  Furthermore, petitioner’s participation in CSE meetings and other school meetings, as well as the fact that petitioner takes the student to medical appointments and retains the ability to obtain the student’s school and medical records, reflects that she retains a significant degree of control over the student’s life.  Therefore, petitioner has failed to meet her burden of proving that she effectuated a complete transfer of custody and control to the cousin (Appeal of B.H. and B.H., 43 Ed Dept Rep 67, Decision No. 14,919; Appeal of Peykar, 38 id. 141, Decision No. 14,003).

While the appeal must be dismissed, petitioner retains the right to reapply for admission to the district on the student’s behalf in the future should circumstances change – such as petitioner’s relocation within respondent’s district or a complete transfer of custody and control to the cousin – and to present any new information or documentation for respondent’s consideration.  I note that it is not necessary to establish parental custody and control through a formal guardianship proceeding (see e.g. Appeal of J.W. and K.W., 59 Ed Dept Rep, Decision No. 17,815; Appeal of D.D., 48 id. 320, Decision No. 15,871).[1]

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

THE APPEAL IS DISMISSED.

END OF FILE