Appeal of SANDRA DENNIS, on behalf of her nephew ADBEEL HARIM SANTOS OLIVENCIA, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 15,712

(January 15, 2008)

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that her nephew, Adbeel, is not a district resident.  The appeal must be sustained.

Petitioner lives within the district and is married to Adbeel’s maternal uncle.  Adbeel has lived with petitioner and her husband since April 29, 2007.  Petitioner claims that on June 7, 2007, Adbeel attempted to register as a 10th

grade student in respondent’s district, but was told that since there were only two weeks left in the school year, he should return to register for summer school.

On or about June 27, 2007, Adbeel’s mother and petitioner returned to the district to register Adbeel.  Petitioner submitted a custodial affidavit with the registration application dated June 26, 2007.  Petitioner stated that Adbeel intended to reside with her “indefinitely” or “approx. 3-5 yrs. poss. longer.”  Petitioner explained, “Currently the family of the child is trying to establish residency in N.Y.S.  Upon them having permanent residency Adbeel will visit his parents on weekends if he chooses ....”  She also stated that she, her husband and Adbeel’s mother would have custody and control of Adbeel, that all three would pay for his food, clothing and medical expenses, and that “we are trying to give a child a stable home life and a good education.”

Petitioner also submitted a parental affidavit, signed by Adbeel’s mother on June 26, 2007.  Adbeel’s mother stated that she and Adbeel’s father had no permanent residence and “have been staying with various relatives and currently there is no room for him at the current home.”  Adbeel’s mother stated that she, petitioner and petitioner’s husband would have custody and control of Adbeel and would provide for his needs.

By letter dated June 27, 2007, respondent’s director of student services and central registration (“director”) advised petitioner of the district’s determination that Adbeel was not a resident entitled to attend respondent’s schools tuition-free.  The director explained that petitioner had submitted insufficient evidence that Adbeel resided in the district with an intent to remain, that Adbeel’s mother had relinquished custody and control and that the reason for the “purported transfer of custody is not solely for educational reasons.”

This appeal ensued.  In support of her claim for interim relief, petitioner submitted an affidavit from Adbeel stating that he resided at petitioner’s address and intends to do so permanently.  Petitioner also submitted an affidavit from Adbeel’s mother dated July 2, 2007, stating that “on July 4th, 2007, I will be returning to San German, Puerto Rico to live; I surrender all parental control of my son ... to my brother Jose C. Olivencia and his wife Sandra Dennis in full.  This shall include but is not limited to medical and educational decisions.”  Adbeel’s mother further stated that petitioner and her husband alone would provide Adbeel with food, shelter, clothing and medical coverage.

Respondent opposed petitioner’s request for interim relief, arguing that its residency determination was rational based on the evidence submitted by petitioner on June 27, 2007.  Respondent noted that while the June 27, 2007 residency application included the June 26, 2007 custodial and parental affidavits, it did not include the July 2, 2007 affidavit executed by Adbeel’s mother.  Petitioner’s request for interim relief was denied on July 31, 2007.

On August 27, 2007, petitioner served respondent with a reply and memorandum of law claiming that her August 6, 2007 request for Adbeel’s admission to respondent’s schools had been denied by the director on August 20, 2007.  Petitioner also renewed her request for interim relief, which relief was granted on September 5, 2007.

Petitioner’s reply includes evidence that Adbeel’s mother returned to Puerto Rico on July 4, 2007.  Petitioner states:

Between the times that the first registration packet submitted to the School District was denied and the time that the appeal to the NYS Department of Education ensued Adbeel’s mother determined that she could no longer stay in New York as she had been denied any form of social services and remained homeless and unable to support her children.  Adbeel’s mother chose to return to her native Puerto Rico where she again has no permanent or viable means to support her children but claims she was at least able to live there in abandoned homes until she qualified for social services.... Adbeel does not reside with his parents due to the lack of stable housing and well as the instability of the relationship between mother and father as they have separated on many occasions and have never been legally married as well as having no permanent residence themselves; the whereabouts of both parents are currently unknown.

In an affidavit, petitioner further explains that she has “made every reasonable effort to contact [Adbeel’s mother] including but not limited to obtaining her signature upon any further forms necessary and pertinent to [Adbeel’s] registration to no avail” and that she has “attempted to petition the Suffolk County District Court ... for further documentation of my custody of Adbeel ... and have been declined only until such time Adbeel ... has lived with me for six consecutive months.”  Petitioner also submits copies of Adbeel’s learner’s permit and his library card listing petitioner’s address as his residence.

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 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).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Hardick, 41 Ed Dept Rep 300, Decision No. 14,693) or the hardships of single parenting (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).

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).

Respondent argues that its residency determinations were not arbitrary and capricious and that petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested.  Respondent maintains that Adbeel’s mother has not relinquished total custody and control to petitioner and bases this assertion on its belief that the “unbelievably fast change in circumstances” described in petitioner’s reply are not credible.  However, petitioner explains in her reply that, prior to submitting the first registration application on June 26, 2007, petitioner and Adbeel’s mother agreed that if the latter decided to move, she would relinquish custody and control of her children to petitioner.  I do not find this explanation implausible, nor do I find the change of circumstances in this case to be inconsistent with the relinquishment to petitioner of Adbeel’s custody and control.

Respondent argues that “[r]eview of the District’s determination should be based upon the information it possessed at the time the decision was made, not upon later-created allegations drafted for purposes of the within appeal.”  However, while the appeal was pending, petitioner obtained new evidence, including Adbeel’s mother’s July 2, 2007 affidavit, which she submitted to respondent when she reapplied for residency on August 6, 2007.  Petitioner also introduced this new evidence as part of the record in this appeal and, pursuant to §276.5 of the Commissioner’s regulations, I have accepted the submission.

Based on the record before me, there is no evidence that Adbeel is able to reside with his parents.  Petitioner has submitted a sworn statement that Adbeel has lived exclusively at her residence since April 29, 2007, and respondent has produced no evidence to the contrary.  Petitioner has also asserted that, since July 2, 2007, she has “continuously acted as the parent, guardian and custodian of Adbeel.”  This assertion, coupled with petitioner’s sworn statements that Adbeel’s mother left New York to join his father in Puerto Rico on July 4, 2007, that both parents are currently homeless and living in abandoned buildings and that their whereabouts are unknown, indicate that petitioner is the only responsible adult with custody and control over Adbeel.

Under these circumstances, I conclude that this is not a case in which the student’s residence has been changed merely to take advantage of the educational program of another school district.  Petitioner has introduced evidence that Adbeel’s parents have an unstable relationship and have been unable to maintain a stable residence and financial condition.  Therefore, I find Adbeel’s residence to be with petitioner.  Accordingly, respondent’s determination is set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Adbeel Harim Santos Olivencia to attend school in the Bay Shore Union Free School District without the payment of tuition.

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