Appeal of MELISSA THOMPSON, on behalf of her son D’ANTHONY, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 15,706

(December 21, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Leslie J. Morsillo, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of White Plains (“respondent”) that her son, D’Anthony, is not a district resident.  The appeal must be dismissed.

In January 2004, petitioner enrolled D’Anthony in respondent’s schools.  On or about March 2007, respondent received information suggesting that D’Anthony did not reside within the district, but instead resided in Tarrytown.  In addition, D’Anthony stated to school staff that he lived in Tarrytown.  Thereafter, respondent’s assistant superintendent for pupil personnel services (“assistant superintendent”) initiated surveillance.

By letter dated May 29, 2007, the assistant superintendent advised petitioner that D’Anthony did not reside within the district and, as a result, he would be excluded from school.  The letter also advised petitioner of her right to submit information in support of D’Anthony’s residency within the district.

On June 25, 2007, petitioner met with the assistant superintendent and, according to respondent, indicated that she rented an apartment in Tarrytown because she had difficulty finding overnight parking in White Plains.  Petitioner did not present any documentation at that time to support her claim of district residency.

By letter dated June 28, 2007, petitioner was told that D’Anthony was not a district resident and that he would not be permitted to attend district schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 24, 2007.

Petitioner alleges that she rents an apartment in Tarrytown but resides with D’Anthony’s grandmother in White Plains.  She maintains that she uses the apartment in Tarrytown for overnight parking because parking in White Plains is limited, but that the majority of her time is spent in the in-district home.  Petitioner contends that she was not provided with the dates and times of the surveillance and that the surveillance is incorrect.  Petitioner alleges that the district did not tell her which documents it required to establish residency and that she was not given the opportunity to produce proof of residency prior to the residency determination.

Respondent alleges that the petition is untimely.  Respondent contends that petitioner does not reside within the district but resides in Tarrytown.  Respondent maintains that the decision to deny D’Anthony admission to its schools was rational and reasonable.

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).  Petitioner was informed of the district’s residency determination by letter dated June 28, 2007.  The petition was served on August 20, 2007, almost two months later.  The only reasons petitioner offers for her delay is that she could not gather documents needed to file her appeal or obtain notarization of certain documents because of her busy schedule.  Under these circumstances, I find no basis to excuse petitioner’s delay.  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would 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 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).

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).  Petitioner has failed to meet this burden.

In support of her claim of residency, petitioner offers a sworn affidavit indicating that D’Anthony resides in White Plains and that she and D’Anthony’s grandmother share responsibility for his care.  Petitioner also offers a sworn affidavit from D’Anthony’s grandmother indicating that she shares responsibility with petitioner for D’Anthony.

In support of its position, respondent submits surveillance evidence showing that on March 8, 2007, D’Anthony was not observed leaving the in-district residence in the morning, but attended school on that day.  On March 29 and April 9, 2007, petitioner was observed picking up D’Anthony from an after school program and driving him to a gated complex in Tarrytown.  On April 10, 2007, petitioner and D’Anthony were observed leaving the Tarrytown apartments in the morning and traveling to school.  To counter this evidence, petitioner provides nothing but unsubstantiated allegations that respondent’s surveillance is incorrect.

Although the record contains statements from D’Anthony’s mother and grandmother that they share responsibility for D’Anthony’s care, there is no evidence of a total, permanent transfer of D’Anthony’s custody and control to his grandmother nor does petitioner allege that is the case.  Absent a permanent transfer of custody and control, D’Anthony’s residence is that of his mother.  Respondent’s surveillance indicates that petitioner resides outside the district in Tarrytown.

Based on this record, I cannot conclude that respondent’s determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

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