Decision No. 12,781

(August 19, 1992)

Fritz R. Saintiny, Esq., attorney for petitioner

Douglas E. Libby, Esq., attorney for respondent

SHELDON, Acting Commissioner.--Petitioner, the aunt and legal guardian of Adlin and Nadine B., appeals from respondent's determination that the children are not residents of the Sewanhaka Central High School District. The appeal must be sustained.

Petitioner resides in the Sewanhaka Central High School District (the district). In 1988, the children enrolled in the ninth grade at Elmont Memorial High School (Elmont) in the district. At that time, the children and their father were living with petitioner. The children's mother is deceased. Their father subsequently returned to Haiti. The children remained in the United States, however, continuing to reside with petitioner in the district. When this appeal was commenced, both children were seniors in high school.

During the 1990-91 school year, investigators from the district observed the children coming to school in a vehicle driven by their uncle, Joseph D., from his residence in Queens. Based on these observations, the district determined that the children were not residents of the district. At petitioner's request, a hearing pursuant to 8 NYCRR 100.2(y) took place on May 16, 1991. At the hearing, petitioner indicated that Mr. D. was a retired teacher who assisted the children with their studies on a regular basis. She also indicated that the children sometimes slept at his home. The hearing officer ordered the district to conduct a further investigation to verify petitioner's claims. Following that investigation, the hearing officer accepted petitioner's explanation and determined that the children were entitled to attend the schools of the district.

In November 1991, the district reopened its investigation of the children's residency, based on observations that the children were, once again, coming to school from Mr. D.'s residence in Queens. A second hearing was conducted on November 15, 1991. In a written decision dated December 5, 1991, the hearing officer concluded that, although petitioner was their legal guardian, the children were not residents of the district because they did not physically reside there. The hearing officer also concluded that petitioner's guardianship had been established solely to enable the children to take advantage of the district's schools. Petitioner commenced this appeal on January 15, 1992.

Initially, petitioner did not request interim relief. On January 31, 1992, however, petitioner submitted an "addendum" to the appeal, requesting a stay admitting the children to Elmont pending a determination on the merits. On the record presented, petitioner's request for a stay was denied. Following the denial of interim relief, however, the district permitted the children to continue in attendance at Elmont. Respondent took no action to exclude the children from school until March 27, 1992.

In April 1992, petitioner asked the Commissioner of Education to reconsider the denial of interim relief, based on the fact that respondent permitted the children to remain at Elmont for such a long period of time. In the request for reconsideration, petitioner alleged, for the first time, that she was the children's legal guardian. Commissioner Sobol granted a stay on April 17, 1992, ordering respondent to admit the children to school pending a final determination on the merits of the appeal.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be instituted within 30 days after the making of the decision or performance of the act of which the petitioner complains, provided that the Commissioner may excuse a delay in commencing an appeal for good cause (Application of Cox, 27 Ed Dept Rep 124, 125). Although the hearing officer's decision finding that the children were not residents of the district is dated December 5, 1991, more than 30 days before the commencement of this appeal, the delay is excused since the children retain the right to reapply for admission to respondent's district at any time, and then to appeal from any denial of admission (Appeal of Pinto, 30 Ed Dept Rep 374, 375).

Education Law '3202(1) provides:

The purpose of the 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 Curtin, 27 Ed Dept Rep 446). Although rebuttable, a child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Pinto, 30 Ed Dept Rep 374; Matter of Delgado, 24 Ed Dept Rep 279; Matter of Shelmidine, 22 Ed Dept Rep 206).

The hearing officer found petitioner to be the children's legal guardian. It is undisputed that petitioner continues to reside within the district. Nonetheless, the hearing officer concluded that since the students are now 18 and no longer require a legal guardian, the residence of their guardian would not be determinative. He also concluded that petitioner's guardianship was established for the sole purpose of taking advantage of the school district. On the record before me, I find the decision of the hearing officer arbitrary and contrary to law.

The record establishes that the children's mother is deceased and their father resides in Haiti. Accordingly, the facts do not support the hearing officer's conclusion that guardianship was established solely to enable the children to attend the district's schools.

Nor do the facts presented rebut the presumption that the children reside with their legal guardian. Although it is undisputed that the students spent significant amounts of time with their uncle, the record is devoid of any evidence that petitioner, the children's legal guardian, ever relinquished custody and control to the uncle (see, Catlin v Sobol, 77 NY2d 552). To the contrary, the record indicates that petitioner encouraged the children's visits to the home of their uncle so that he, a retired school teacher, could assist them with their studies.

Even though the students are over 18 and could have established a residence of their own, there is nothing in the record to support a finding that, in fact, they did so. As the New York Court of Appeals concluded in Catlin v Sobol, supra, a child's physical presence in a school district, standing alone and without regard to the retention of parental control and supervision, does not overcome the presumption that the child resides with the parent or legal guardian. Therefore, even though the hearing officer found that these students spent significant amounts of time outside the district, respondent's conclusion that they were no longer residents of the district was improper, as there is neither evidence to establish that their legal guardian relinquished control and supervision to their uncle, nor evidence that they had, in fact, established a legal residence separate and apart from their guardian.

THE APPEAL IS SUSTAINED, and

IT IS ORDERED that the determination of the hearing officer, dated December 5, 1991, is hereby vacated, and

IT IS FURTHER ORDERED that, because respondent has failed to rebut the presumption that Adlin and Nadine B. reside within the district, respondent may not seek to recover tuition for their attendance in the schools of the district.

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