Appeal of ALEXANDRA TORRES, on behalf of her niece VANESSA PABON, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,292

(August 22, 2005)

 

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that her niece, Vanessa, is not a district resident. The appeal must be dismissed.

By registration forms dated August 31, 2004, petitioner, a resident of respondent's district, sought admission of Vanessa to the district's schools beginning in September 2004. Vanessa is the daughter of petitioner's brother who lives in Hempstead, outside the district.

By letter dated September 13, 2004, respondent's Administrative Assistant to the Superintendent notified petitioner that Vanessa was not entitled to attend the public schools of the district on the basis of "Parental Residence Out-of-District & Custody Concerns."

By letter dated September 15, 2004, petitioner appealed this determination to the district's administrative review officer. An administrative hearing was held on September 15, 2004 at which petitioner, Vanessa's father and Vanessa attended.

On September 30, 2004, respondent's administrative review officer issued a determination that Vanessa was not a district resident and therefore not entitled to attend respondent's schools. This appeal ensued. On October 13, 2004, petitioner's request for interim relief was denied.

Petitioner claims that Vanessa lives with her and requests a determination that Vanessa is a district resident and entitled to attend the district's schools. To substantiate her claims, petitioner submitted copies of the guardianship papers that she and Vanessa's parents filed in Nassau County Family Court ("Court") to have her appointed as Vanessa's guardian.

Respondent claims its determination that Vanessa is not a district resident was rational and supported by the record.

Initially, I must address a procedural matter. Subsequent to the service and filing of all the pleadings in this appeal, petitioner submitted an order, dated April 12, 2005, from the Court appointing her the guardian of Vanessa and a letter, dated April 22, 2005, from respondent's administrative review officer to petitioner stating that petitioner's "appeal" has been denied because custody of Vanessa was transferred to petitioner solely for educational purposes. Petitioner did not request permission to submit these additional documents as required by the Commissioner's regulations (8 NYCRR �276.5), nor is there any proof of service indicating that petitioner served a copy of these documents upon respondent (8 NYCRR �275.8[b]). Accordingly, the additional documents have not been considered as part of the record.

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). 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).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

  In this case, petitioner has failed to rebut the presumption that Vanessa's residency is with her father in Hempstead. Petitioner has not established that Vanessa's permanent residence is with her or that Vanessa's father has made a total transfer of custody and control. On the registration materials, petitioner indicated that both she and Vanessa's parents provide financial support to Vanessa and that Vanessa would live with her for two years, until Vanessa's 18th birthday.

At the hearing, petitioner, Vanessa's father and Vanessa all testified that Vanessa would only be living with petitioner for two years, until she graduated from high school. Vanessa's father also testified that he contributes to her financial support and that he was not relinquishing all of his rights to her. Additionally, both Vanessa and her father admitted that the reason she was living with petitioner instead of her father was because neither Vanessa nor her father wanted her to attend Hempstead High School. Vanessa also asserted that she would benefit from attending respondent's schools.

Based on the totality of the record, I find that respondent's determination was neither arbitrary nor capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district on behalf of his niece at any time should the circumstances presented in the record of this appeal change (Appeal of a Student With a Disability, 43 Ed Dept Rep 80, Decision No. 14,926).

THE APPEAL IS DISMISSED.

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