Appeal of C.W., on behalf of I.M. and T.M., from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 16,564

(October 15, 2013)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H.McCarthy, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals a determination of the Board of Education of the Bayshore Union Free School District (“respondent”) that her children are district residents and therefore, are not entitled to attend the district’s schools tuition-free. The appeal must be dismissed.

During the 2012-2013 school year, I.M. and T.M. were enrolled in school in petitioner’s district. Respondent asserts in their answer and accompanying affidavit that petitioner contacted the District’s Office of Student Services and Central Registration on or around the beginning of December 2012 to request transportation for her children due to the fact that she moved to another location within respondent’s district. Upon confirming that petitioner’s new residence was located outside the geographical confines of respondent’s district and within the Brentwood Union Free School District (“Brentwood address”), petitioner’s request for transportation was denied. According to the affidavit submitted by respondent’s District’s Director of Student Services and Central Registration, upon notifying petitioner that her address was located outside respondent’s district, petitioner verbally indicated that she “really resided” at another address within respondent’s district (“district address”). Because petitioner gave conflicting accounts ofher actual residency, respondent commenced a residency investigation of both students.

The investigation included surveillance of petitioner’s Brentwood address on two mornings in January2013 and five separate evenings in February 2013. Although the investigator never observed petitioner or petitioner’s children exiting or entering the premises, a vehicle registered to petitioner at petitioner’s Brentwood address was always observed parked at the Brentwood address in the

evening. Additionally, the investigator conducted surveillance at petitioner’s alleged district address on two occasions in January 2013 and never observed petitioner, petitioner’s children or petitioner’s vehicle anywhere near the premises. A residency conference was held on February 26, 2013 wherein petitioner admitted to executing a three year lease for her Brentwood address and acknowledged that her address was outside of respondent’s district. By letter dated, February 27, 2013, respondent’s Assistant Superintendent for Admission advised petitioner that her children were not district resident’s and would no longer be permitted to attend school in respondent’s district. This appeal ensued. Petitioner’s request for interim relief was denied on March 14, 2013.

Petitioner admits that she resides at the Brentwood address which is outside respondent’s district; however, she alleges that her children reside with a relative at an address within respondent’s district and, therefore, are entitled to attend respondent's schools. Attached to the petition is a handwritten letter, dated February 27, 2013, in which petitioner purports to transfer custody and responsibility for her children “indefinitely” to the children’s aunt, T.P., who resides at the district residence.

Respondent contends that petitioner has failed to establish a clear legal right to the relief requested and that petitioner and her children are not district residents and its residency determination was reasonable, especially in view of the surveillance. Respondent asserts that it was never proffered any documentation in support of petitioner’s claim that she has relinquished custody and control to another person residing in respondent’s district and the documentation she presents in the instant appeal fails to establish that petitioner has transferred care, custody and control of her children. Respondent also asserts that the appeal should be dismissed for improper service.

I must first address respondent’s procedural defense. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board

of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939;Appeal of Naab, 48 id. 339, Decision No. 15,877).

As proof of service of the petition upon respondent, petitioner submits an affidavit of service indicating that the petition was served by leaving it with a “district clerk in said district ... duly authorized to accept service.” In its verified answer respondent acknowledges that the petition was served on the district; however, respondent asserts that the copy of the petition served upon respondent was “missing paragraphs 8 through 15 and the entire prayer for relief.” Petitioner submits no reply or other competent evidence to refute respondent’s claim of improper service. Petitioner’s failure to serve the complete petition and the exhibits on respondents denied respondent a meaningful opportunity to respond to the contents contained therein and present a defense in this appeal (see Appeal of Whittaker, 52 Ed Dept Rep, Decision No. 16,424; Appeal of D.S. and D.S., 45 id. 289, Decision No. 15,327). Accordingly, petitioner’s appeal must be dismissed for improper service.

Even if the appeal were not dismissed on a procedural ground, 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No.15,924). “Residence” for purposes of Education Law §3202is established by one’s physical presence as an inhabitantwithin the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484,Decision No. 15,924). A child's residence is presumed tobe 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 Polynice, 48 Ed DeptRep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773). 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 Polynice, 48 Ed Dept Rep490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773).

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 (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 [1991]; Appeal of Polynice, 48Ed Dept Rep 490, Decision No. 15,927). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed DeptRep 490, Decision No. 15,927; Appeal of France-Rayson, 48id. 142, Decision No. 15,820).

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 Cheng, 47 Ed Dept Rep 366,Decision No. 15,726; Appeal of Mendoza, 47 id. 285,Decision No. 15,698).

A residency determination will not be set aside unles sit is arbitrary and capricious (Appeal of White, 48 Ed DeptRep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On this record, petitioner has failed to rebut the presumption that I.M. and T.M. reside with her at the Brentwood address outside respondent’s district. While respondent’s surveillance evidence is not overwhelming,

petitioner has not submitted a reply or otherwise provided evidence to explain or contradict such evidence. The surveillance occurred early in the morning and in the evening on seven different occasions in January 2013 and February 2013. Although I.M. and T.M. were never observe dentering or exiting the Brentwood address in the evening, petitioner’s vehicle was in fact observed parked outside the Brentwood address during each evening surveillance. Moreover, the investigator conducted surveillance at the petitioner’s alleged district address on two occasions in January 2013 and never observed petitioner, petitioner’s children or petitioner’s vehicle anywhere near the premises. To the contrary, at the residency hearing, petitioner admitted to executing a three year lease for her and her children at the Brentwood address and acknowledged that her new address was outside of respondent’s district. This is in direct contradiction to a notarized statement by T.P., dated February 28, 2013, in which she asserts that both petitioner’s children and their mother, petitioner, reside with her at the district residence.

Although the record also contains a notarized letter which was signed by petitioner on February 27, 2013 that purports to transfer full custody of her children to the children’s aunt, T.P., who resides at a district address, Inote that this document was executed after respondent’s February 26, 2013 residency determination. That timing supports the inference that the document was executed for the sole purpose of taking advantage of respondent’s schools. 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 Cheng, 47 Ed Dept Rep 366,Decision No. 15,726; Appeal of Mendoza, 47 id. 285,Decision No. 15,698).

Additionally, on this record, petitioner has not established that she has made a total and permanent transfer of I.M.’s and T.W.’s custody and control to their aunt, T.P. The notarized letter dated February 27, 2013states that petitioner “gives T.P. full custody over my children T.M. and I.M. and full responsibility while they reside with her at ... [district address] indefinitely.” Such a document does not constitute a formal transfer of guardianship and on the present record, I find that petitioner has not met her burden of proving that she has in fact made a permanent transfer of custody and control to

T.P. First, I note that C.W. has commenced this appeal on

behalf of I.M. and T.M., which contradicts her claim that she has relinquished full custody and control of I.M. and

T.M. Moreover, while the petition contains conclusory allegations that her children’s aunt is providing support for her children, including food, shelter and clothing, and is exercising control over their activities and behavior, petitioner has not offered any proof to corroborate those allegations. The petition also asserts that the children’s parents “are both active in [the] children’s lives on a daily basis” and that their father resides in Hempstead while she resides in Bay Shore, which not only contradicts her assertion that she has surrendered custody and controlbut also raises the question of whether the children’s father has relinquished custody and control of them.

Based on the totality of the record before me, I find that respondent’s determination that I.M. and T.M. are not district residents is neither arbitrary nor capricious. The evidence proferred by petitioner is replete with contradictions and petitioner has not demonstrated that she has relinquished parental custody and control to T.P. or that her purported attempt to surrender custody and control was made for any reason other than to take advantage of respondents’ schools.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her children’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED. END OF FILE