Appeal of ROSELAURE CHARLES, on behalf of her niece LAURENCE BOUCHEREAU, from action of the Board of Education of the Valley Stream Central High School District regarding residency.

Decision No. 15,268

(August 5, 2005)

Guercio & Guercio, attorneys for respondent, John P. Sheahan, Esq. of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Central High School District ("respondent") that her niece, Laurence Bouchereau, is not a district resident. The appeal must be dismissed.

On July 15, 2004, petitioner attempted to register Laurence in respondent's district. In the custodial affidavit, petitioner stated that Laurence intended to reside with her for four years because Laurence's mother was relocating to Haiti the following month. While she stated that this arrangement was permanent, she also stated that Laurence's mother provided food, clothing and all other necessities, and 50% of her financial support. Based on this information, the district's deputy superintendent held a residency hearing on August 27, 2004.

By letter dated August 30, 2004, respondent's superintendent notified petitioner that Laurence was not entitled to enroll in the schools of the district because she was not a resident. This appeal ensued. Petitioner's request for interim relief was granted on February 16, 2005.

Petitioner contends that Laurence resides with her in respondent's school district. Respondent asserts that the petition is untimely, petitioner has failed to establish facts upon which the Commissioner may grant relief, and its determination is neither arbitrary nor capricious.

The appeal must be dismissed as 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 O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). The superintendent's decision that Laurence was not a district resident is dated August 30, 2004, yet petitioner did not commence this appeal until January 21, 2005, almost five months later and has not offered any reason for the delay. Consequently, the appeal must be dismissed as untimely.

The appeal must also be dismissed on 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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). 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 L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

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 I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930; Appeal of L.P., 43 id. 12, Decision No. 14,901). 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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

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 (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L.H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Nelson, 44 id. 20, Decision No. 15,082). Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917).

At the hearing, the district's residency officer testified that petitioner and Laurence's mother had both come to register Laurence on or about July 15. They informed him that Laurence was attending summer school in New Jersey, that the mother was returning to Haiti the following month, and that they wanted Laurence to move to the district and for petitioner to be her guardian "in order for her to continue to have a better education here." Petitioner testified that Laurence's mother had already returned to Haiti for personal and financial reasons, but that petitioner was sponsoring Laurence to remain in the United States and was trying to obtain health insurance for her.

The original registration documents submitted in July 2004 and the hearing testimony indicated that Laurence's mother would provide food, clothing, all other necessities and 50% of her financial support, and that full custody and control had not been transferred to petitioner. Based on this information, respondent concluded that Laurence's residency is with her mother in Haiti.

With the petition, petitioner submits new registration documents, including a new custodial affidavit indicating that she will now provide all financial and other support. In addition, petitioner submits a death certificate for Laurence's father, a notarized Parent Affidavit from Laurence's mother in Haiti in which she relinquishes full custody and control of Laurence to petitioner until Laurence reaches the age of maturity, a second notarized document from Laurence's mother in Haiti giving responsibility to petitioner, and a notarized custodial affidavit from petitioner stating that she assumes full financial and other responsibility for Laurence.

Nothing submitted with the petition, however, indicates a change in circumstance from the time of the original submissions or the residency hearing. Rather, those submissions merely suggest a belated attempt to establish custody after respondent denied Laurence's admission to its schools. As stated above, Laurence may not establish residency solely to take advantage of the district's schools (Appeal of Chorro, 44 Ed Dept Rep 50, Decision No. 15,095; Appeal of Brunot, 35 id. 402, Decision No. 13,584). Therefore, based on all the facts and circumstances, I find that petitioner has failed to rebut the presumption that Laurence's residence remains with her mother in Haiti (seeAppeal of Melgar, 45 Ed Dept Rep ___, Decision No. 15,248). I cannot conclude, therefore, that respondent acted arbitrarily or capriciously in determining that she is not a district resident.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Laurence's behalf.

THE APPEAL IS DISMISSED.

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