Appeal of DAVID BERMUDEZ, on behalf of VANESSA BERMUDEZ, from action of the Board of Education of the Valley Stream Central High School District regarding residency.

Decision No. 14,712

(March 29, 2002)

Guercio & Guercio, attorneys for respondent, David M. Brodsky, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Valley Stream Central High School District ("respondent") that his sister Vanessa Bermudez, is not a district resident entitled to attend its schools tuition-free. The appeal must be dismissed.

In December 2000, petitioner purchased a home in Malverne, within respondent"s district, but did not occupy the house at that time due to ongoing renovations. Petitioner registered Vanessa at respondent"s high school in June 2001. At that time, he claimed, in a custodial affidavit, to be her legal guardian and stated that their parents lived in Venezuela. Consistent with its centralized registration policy, respondent conducts residency hearings for all students admitted pursuant to custodial affidavits. At a hearing, held on October 23, 2001, petitioner admitted that he, his parents, and Vanessa all currently lived at an address in Maspeth, Queens, outside respondent"s district. Thereafter, respondent"s assistant superintendent issued a determination that Vanessa was not a district resident. This appeal ensued. Petitioner"s request for interim relief was denied on November 9, 2001.

Petitioner alleges that he purchased a house in respondent"s district in December 2000 intending for his sister to live with him. He claims that renovations to the house began in July 2001 and were to be completed by September 2001. However, due to construction delays, the house was not scheduled for occupancy until December 2001. Petitioner produced a building permit dated July 25, 2001 in the amount of $48,000 for renovations to the property in question.

Respondent contends that at the October 2001 residency hearing, petitioner admitted that his parents do not live in Venezuela, as he had claimed in his custodial affidavit. He testified that his parents live in Maspeth with him, his family and Vanessa. Respondent also contends that petitioner has no physical presence in the district. Finally, respondent alleges that petitioner has no standing to bring this appeal.

I will first address respondent"s argument that petitioner has no standing to bring this appeal. An individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that he or she has suffered personal damage or injury to her or his civil, personal or property rights (Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Bocek, 37 id. 130, Decision No. 13,822). In this case Vanessa was enrolled in and attended respondent"s school, as respondent initially accepted petitioner"s affidavit of custody. Furthermore, petitioner alleges that he is her legal guardian and that she resides with him in respondent"s district. Additionally, respondent"s letter to petitioner dated October 23, 2001 notifies petitioner of his right to appeal the determination to the Commissioner of Education, (Appeal of Weik and Teufel, 41 Ed Dept Rep ____, Decision No. 14,621). Under these circumstances, I find that petitioner may bring this appeal on Vanessa"s behalf to challenge respondent"s residency determination.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Burdi, 39 Ed Dept Rep 176, Decision No. 14,206; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). However, this presumption may be rebutted (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Young and Billings, supra; Appeal of Rosati, 38 id. 216, Decision No. 14,018). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Young and Billings, supra), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Young and Billings, supra; Appeal of a Student with a Disability, 37 Ed Dept Rep 173, Decision No. 13,833). If the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Revella, 37 id. 65, Decision No. 13,805).

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Lavelanet, 39 Ed Dept Rep 56, Decision No. 14,171). Here, petitioner has failed to meet that burden. Petitioner stated in his custodial affidavit that his parents do not live in the United States, however, at the residency hearing, petitioner admitted that his parents live in Maspeth, Queens with his sister. Petitioner has not rebutted the presumption that the student"s residence is with her parents outside respondent"s district because he has not shown that there has been a total and permanent transfer of custody and control to him. Moreover, there is insufficient evidence in the record that petitioner himself has established residence in respondent"s district. Therefore, I cannot find that respondent acted arbitrarily or capriciously in determining that Vanessa is not a district resident.

 

THE APPEAL IS DISMISSED.

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