Appeal of BEST BATCHATEU, on behalf of JUSTIN RONALDO NAMBA NAMBA, CLEMENTINE ADRIENNE WENGUEBOU NAMBA and MANUELA FLORE TCHAGNA NAMBA, from action of the Board of Education of the Rush-Henrietta Central School District regarding residency.

Decision No. 15,968

(August 14, 2009)

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

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Rush-Henrietta Central School District (“respondent”) that his brother’s children are not district residents.  The appeal must be dismissed.

Petitioner is the uncle of Justin, Clementine, and Manuela (“the children”).  In August 2008, petitioner attempted to enroll the children in respondent’s schools.  Respondent’s director of student services (“director”) denied his request on the basis that they were not district residents.

In October 2008, petitioner moved out of respondent’s district, but returned in January 2009 and, once again, attempted to enroll the children.  By letter dated February 13, 2009, the director notified petitioner that the children were not district residents.

On or about March 16, 2009, petitioner attempted to commence an appeal but his petition was rejected by my Office of Counsel for, among other things, failure to effect personal service.  On April 27, 2009, petitioner served a petition upon respondent.  On May 7, 2009, petitioner’s request for interim relief was denied.

Petitioner argues that respondent’s determination was arbitrary and capricious.  Specifically, petitioner contends that the children came to the United States from Cameroon on June 9, 2008, that they have been granted status as permanent legal residents by the Immigration and Naturalization Service (“INS”) and that their parents (petitioner’s brother and his wife) surrendered custody and control of them to petitioner.  In addition, petitioner claims the children have resided exclusively with him since June 9, 2008, that he has been providing them with shelter, food, clothing and other necessities and that that he has not received any money or financial assistance from the children’s parents.  Petitioner submits, among other things, a “Guardianship Authorization” for each of the children in support of his claims.

Respondent contends that petitioner’s appeal is untimely.  In addition, respondent argues that the children’s immigration status is not determinative of “residency” for purposes of providing a tuition-free education, and that the “Guardianship Authorizations” submitted by petitioner do not fully and permanently transfer guardianship or custody to him.  Respondent, therefore, denies that its residency determination was arbitrary and capricious.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Delaney, 46 Ed Dept Rep 253, Decision No. 15,498; Appeal of Laurencon, 45 id. 514, Decision No. 15,399).

The record indicates that the district’s last determination in this matter was made on February 13, 2009, and that petitioner received this decision on February 17, 2009.  Although petitioner attempted to commence an appeal on or about March 16, 2009, that petition was rejected for lack of personal service (see 8 NYCRR §275.8).  While it appears that petitioner attempted to correct this deficiency, he did not personally serve respondent with a petition until April 27, 2009, almost 70 days after he received respondent’s determination.  Accordingly, since there is no evidence in the record that the first petition was ever personally served on respondent, the appeal must be dismissed as untimely (seeAppeal of Davila, 41 Ed Dept Rep 419, Decision No. 14,732; Appeal of Arricale, 32 id. 365, Decision No. 12,856).

Even if the appeal were not dismissed as untimely 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).  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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).

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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  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 Jeudy, 46 Ed Dept Rep 512, Decision No. 15,579).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Moyer, 46 Ed Dept Rep 290, Decision No. 15,511; Appeal of Santana, 46 id. 255, Decision No. 15,499; Appeal of Werner, 45 id. 14, Decision No. 15,244).  A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

On the record before me, I am unable to find that petitioner has rebutted the presumption that the children reside with their parents.  According to the “Guardianship Authorizations” submitted by petitioner, the children’s parents (and not petitioner) have legal custody of the children.  Further, while these authorizations purport to delegate to petitioner certain rights with respect to the children, including the right to make educational and medical decisions, there is no indication that these rights rest exclusively with petitioner.  The authorizations, standing alone, therefore, do not effect a total and permanent transfer of control (seee.g.Appeal of Murray, 46 Ed Dept Rep 77, Decision No. 15,445), nor do they prove that the children’s parents are not providing support for the children.  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  Petitioner has failed to meet his burden in this appeal.

In light of this disposition, I need not consider the parties’ remaining contentions.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on the children’s behalf and to present new information and evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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