Request By:
Mr. Robert W. Riley
Acting General Counsel
Department for Human Resources
209 St. Clair Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General for an opinion concerning the question of residence for school attendance purposes of children committed to the Department for Human Resources and residing in foster homes. You stated in your letter that recently the Department has been involved in instances in which children were in foster care in school districts other than the school district in which the parents of the children reside. You noted that in at least two instances the school district of the residence of the foster parents refused to admit the foster children.
In your letter you suggested that KRS 158.030 appears to provide the answer to your question and that the children placed in a foster home had a right to attend school in the district where the foster home was located. We agree.
Residence for school attendance purposes was most recently considered by this office in OAG 76-116, copy attached. We quoted from KRS 158.030 which provides in part that "every child residing in the district (school) who is six years of age and over" has the privilege of attending tuition free the public schools in that district. (Emphasis supplied.) See also the provisions of KRS 158.100.
In OAG 76-116 we noted the several cases of the Kentucky Court of Appeals in which the word "reside" or "residence" had been construed for school attendance purposes. It was stated the thrust of these court decisions was that the important consideration is actual residence rather than legal domicile. One of the key cases in this regard is Crain v. Walker, 222 Ky. 828, 2 S.W.2d 654 (1928). In this decision the Court refers to the case of Board of Trustees of Stanford Graded School District v. Powell, 145 Ky. 93, 140 S.W. 67, and quotes from that case as follows:
"'Residence entitling an infant to school privileges is distinguished from domicile, or the technical and narrow use of the term 'residence,' for the purpose of suffrage or other like purposes, and it is construed in a liberal sense as meaning to live in, or be an inhabitant of, a school district, the purpose being not to debar from school privileges any child of school age found within the district under the care, custody, or control of a resident thereof. Such rule does not usually require that there shall be a legal domicile, but it is sufficient if the child and its parent, or the person in loco parentis, are actually resident in the district, with apparently no present purpose of removal.'" 2 S.W.2d at 656.
The Court of Appeals further goes on to say in the Crain case at pages 656-657 that the Powell case "expressly holds that 'for school purposes a child's residence is not necessarily the residence of its parent or parents,' and that, if it has assumed a permanent home with some other person standing in loco parentis to it, then the residence of the child for school purposes is the same as that of such person."
If additional support is needed for our conclusion it may be readily found in the Kentucky Court of Appeals decision in Wirth v. Board of Education for Jefferson County, 262 Ky. 291, 90 S.W.2d 62 (1935). In that case the Jefferson County Children's Home had placed the child Wirth in one Clarence Heady's home so as to provide Wirth with a "boarding home." The Court noted that Heady had assumed over the child the authority of a foster parent. The Court at page 64 concluded that so long as Wirth continued to remain in the home of Heady the situation was governed by the principles stated in the Powell case and Crain v. Walker, and Wirth would be a resident of the common school district in which Heady resided and that Wirth was entitled to attend, free of tuition, the common schools taught therein. This decision is clearly controlling and dispositive of the question considered in this opinion.