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Plaintiff Seeks Reimbursement for Cost of Tuition for Foster Child

 

Plaintiff seeks reimbursement for the cost of tuition for a foster child, pursuant to Education Law section 3202(5)(a) which provides for the distribution of the cost of educating indigent children among the school districts of this state. This child’s mother, was confined to the Bedford Hills Correctional Facility at Bedford Hills, New York when the child was born on June 27, 1965. The mother, immediately prior to her incarceration, resided for several months in 1964 within the Amityville Central School District. She remained in prison until January 5, 1970 and has thereafter not returned to live in Amityville.

The Nassau County Department of Social Services assumed responsibility for the support and maintenance of Cheryl on February 16, 1966, and ever since, has had her in their charge. It appears that the child was placed in foster care in Westbury at the age of eight months and has received her education within the schools of the plaintiff Westbury School District.

In each of the two actions Westbury pleads that from January 1, 1974 to June 30, 1978, Cheryl received her education in Westbury and that the cost of tuition, computed pursuant to the formula established by the Commissioner of Education is $4,900.43. In the Amityville action, two other Westchester County school districts and the County of Nassau are named defendants. The actions have been discontinued as against all but Amityville, Bedford Hills and the County of Nassau.

The defendant in its answer denies responsibility for the payment of tuition, counterclaims against the plaintiff for the cost of educating an unrelated child, which claim has since been discontinued, and cross-claims against its co-defendants. Defendant denies liability for the payment of tuition, asserting as an affirmative defense that neither the infant nor her mother were residents of the Bedford Hills School District by virtue of the mother’s incarceration. Defendant County of Nassau denies that its assumed custodial relationship to the child subjects it to liability for the payment of tuition.
The question posed, therefore, is: to whom falls the responsibility for providing this child, Cheryl Thomas, with a free public school education which is her constitutional right (McKinney’s Const. Art. XI, ยง 1)?

The plaintiff argues first that since the child’s inmate-mother elected to retain the newborn child in the institution with her during her early months as authorized by Correction Law section 611(2), the child acquired a legal residence in the Bedford Hills School District, which embraces the institution. Of course, a newborn child acquires the residence of its custodial parent, in this case the mother. Was the mother a resident of Bedford Hills Central School District while a prisoner of the State? The Court of Appeals found such contention “preposterous” in 1894 holding that prison “is a place of confinement for all except the keeper and his family” and that no residence is acquired there by virtue of involuntary incarceration. The voluntary relinquishment of a prior residence and the voluntary establishment of a new place of abode, albeit institutional, is an essential ingredient in a determination of residence or domicile. The freedom of choice, to come or go at one’s whim or pleasure, at one’s own expense or at the expense of others made for one’s benefit are bona fide elements of determining residence.

This Court is persuaded that defendant Bedford Hills Central School District never acquired responsibility for the education of Cheryl Thomas by virtue of her having been born within the confines of the Bedford Hills Correctional Facility. The cross-motion of defendant Bedford Hills to dismiss the complaint against it is granted.

Turning to the action against Amityville, the critical point in time at issue is the residence of Cheryl Thomas “at the time the social services district assumed responsibility for the support and maintenance of such pupil. That point is clearly established by the action of the Nassau County Department of Social Services which took control of Cheryl Thomas, as a public charge, on February 16, 1966. On that date Cheryl’s mother was an inmate in the Bedford Hills Correctional Facility. However, her legal residence, for the purposes of social services eligibility, was Nassau County and more precisely, the Amityville School District.

The Commissioner of Education has considered numerous inter district conflicts dealing with the assignment of financial responsibility for the education of children who are public charges. In the Matter of Bd. of Ed., Ossining UFSD (17 Ed.Dept.Rep. 10), the Commissioner credits the determination of the social services agency as controlling on the issue of identifying the “sending district”.
Here, the certificate of the child’s original residence issued by the Commissioner of Social Services of Nassau County is before the Court. The challenge to the Commissioner’s determination of Amityville as the “sending district” is not well founded. The Commissioner’s determination is properly based upon the fact that the child’s mother was a Nassau County resident within the Amityville School District at the time of her incarceration in Bedford Hills. That residence had not changed at the time of Cheryl’s birth.

Moreover, as to the Amityville claim against the County of Nassau, there is nothing in this record to suggest that the County “assumed responsibility for tuition costs” for its infant charge. The legislature specifically provided for the payment of tuition for such children by “the school district in which each such pupil resided. Clearly, the appropriate school district in the case of the child is defendant Amityville.

Plaintiff’s motion for summary judgment against defendant Amityville is granted. The cross-motion of defendant is, accordingly, denied. The cross-claim of defendant against the County of Nassau is dismissed.

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