Appeal of MARILYN RAGLAND and JOE RAGLAND, SR., on behalf of their grandson, JOE RAGLAND III, from action of the Board of Education of the Rush-Henrietta Central School District regarding residency.

Decision No. 15,417

(June 30, 2006)

DesMarteau & Beale, attorneys for respondent, George DesMarteau, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the Rush-Henrietta Central School District ("respondent") that their grandson, Joe, is not a district resident.  The appeal must be dismissed.

Joe is 16 years of age and has not received a high school diploma.  On August 3, 2005, Joe's grandmother, petitioner Marilyn Ragland, and his parents, Joe Ragland, Jr. and Mary Abeyta, requested his admission to respondent's schools.  Petitioners are district residents but Joe's parents reside in Albuquerque, New Mexico.

On August 8, 2005, Mary Abeyta executed a limited power of attorney in New Mexico, appointing petitioners to act on her behalf to make decisions regarding Joe's education and health care.  Before going to stay with his grandparents, Joe had attended Albuquerque High School in New Mexico.  By letter dated August 31, 2005, respondent's designee notified Joe's father that his son was not a district resident.  This appeal ensued.  On September 27, 2005, respondent agreed to admit Joe to its schools pending the determination of this appeal.

Petitioners contend that in August 2005, Joe came to live with them in Henrietta, where they provide him with food, shelter and clothing.  Petitioners claim that Joe's parents gave parental control over Joe to them by limited power of attorney on August 8, 2005.  Petitioners contend that Joe will reside with them until he finishes high school and goes to college.

Respondent contends that Joe resides with his parents in New Mexico based upon the presumption that a student's legal residence is that of his parents.  Respondent claims that the parental and custodial affidavits and limited power of attorney submitted by petitioners do not overcome that presumption because the delegation of parental authority may be revoked at will.  Respondent contends further that the limited power of attorney document supports an inference that educational placement was the primary motivation and that such authority and control that has been transferred is not total but only supplemental to the parents' retained authority.

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 Innocent, 44 Ed Dept Rep 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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 or legal guardian 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).

The record reflects that the purported transfer of Joe's custody and control to petitioners is neither total nor permanent.  Petitioners have presented no evidence of a court order or letters of guardianship transferring permanent custody of Joe to petitioners and rely entirely upon the limited power of attorney that states Joe is temporarily residing with them.  This power of attorney does not effect either a total or permanent transfer of custody and control.  Therefore, on the record before me, I cannot find respondent's determination to be arbitrary, capricious or unreasonable.

     THE APPEAL IS DISMISSED.

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