Appeal of CHANELLE KENDALL, on behalf of her daughters JASMINE and DEASIA, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 16,149

(September 2, 2010)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq, of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that her daughters, Jasmine and DeAsia, are not district residents.  The appeal must be dismissed.

Petitioner’s daughters have been attending school in respondent’s district based on petitioner’s representation that they reside on Woodfield Road within the district (“Malverne address”).  Petitioner’s mother owns the home at that address.

During surveillance conducted from January to March 2010, petitioner was observed at an address outside the district (“West Hempstead address”).  By letter dated March 11, 2010, respondent’s Director of Pupil Personnel Services (“director”) notified petitioner of her determination that petitioner did not reside in the district.  The letter also offered petitioner the opportunity to meet and present evidence of her residency.  Petitioner requested a meeting with the director, which was held on March 16, 2010.

At the conclusion of the meeting, the director determined that petitioner was not a district resident and, therefore, her children were not entitled to attend the district’s schools tuition-free.  On March 21, 2010, petitioner appealed the director’s determination to respondent. 

Petitioner submitted a notarized statement, dated March 21, 2010, stating that her mother was authorized to act on the behalf of her children and had custody “from Sunday afternoon through Friday afternoon.”  Petitioner’s mother also provided a letter to respondent indicating that petitioner lived outside the district but, due to petitioner’s health issues and work schedule, Jasmine and DeAsia resided with her during the week and petitioner on the weekends. By letter dated March 24, 2010, respondent affirmed the director’s decision and this appeal ensued.  A request for interim relief was granted on April 20, 2010.

Petitioner claims that she resides at the Malverne address but sometimes stays with her boyfriend outside the district.  She also asserts that she has given her mother control of her children in her absence, but they also share custody and control.  Respondent claims that petitioner is not a district resident, that there has been no transfer of custody and control and, therefore, the children are not entitled to attend respondents’ schools tuition-free.  

Initially, I must address two procedural matters.  Respondent submitted a late answer, served two days after the 20-day requirement established pursuant to §275.13 of the Commissioner’s regulations.  Petitioner does not object to the submission.  I note that the answer is virtually identical to respondent’s affirmation in opposition to petitioner’s request for interim relief, which was timely submitted.  Under these circumstances and in the absence of prejudice to petitioner, I have considered respondent’s answer (Appeal of Bacchus, 38 Ed Dept Rep 123; Decision No. 13,998).

Respondent also requested permission pursuant to §276.5 of the Commissioner’s regulations to submit an additional affidavit by the director.  However, respondent provides no explanation why this affidavit was not included with its prior submissions.  Accordingly, this document has not been accepted.

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). 

The record supports respondent’s determination that petitioner’s children are not district residents.  The surveillance report indicated that petitioner was observed leaving the West Hempstead address early in the morning on six days in January and March 2010.  DeAsia was transported to school from both addresses.  Jasmine was observed leaving the Malverne address.  Additionally, petitioner’s mother disclosed in her letter to the district that her daughter was not living in the district.  Furthermore, petitioner failed to submit any evidence to establish physical presence in the district, particularly in light of the surveillance.

Petitioner also did not submit any evidence demonstrating that she has transferred total, permanent custody and control of her children.  Not only did petitioner state in the March 21, 2010 notarized statement that her mother was only acting on her behalf “from Sunday afternoon through Friday afternoon,” but she states in her petition that both she and her mother are with the children on a daily basis and care for the children’s daily needs.  Petitioner further states that she has authorized her mother to exercise control over her children “when I am away from home.”

Based on the record before me, I cannot find respondent’s determination to be arbitrary and capricious.  While the appeal must be dismissed, I note that petitioner may reapply to the district for admission on the children’s behalf at any time and may present for respondent’s consideration any new information bearing on the question of residence.

THE APPEAL IS DISMISSED.

END OF FILE.