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Decision No. 12,967

Appeal of ALEXANDER DIAZ from action of the Board of Education of the Garden City Union Free School District regarding residency.

Decision No. 12,967

(August 2, 1993)

Cullen & Dykman, attorneys for respondent, Thomas Wassel, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that he is not a resident of the Garden City Union Free School District ("the district"). The appeal must be sustained in part.

Petitioner has attended the district's Garden City High School since April 1992. Having previously been classified as a student with a disability, petitioner was recently declassified and has returned to regular education. He is now 19 years old and scheduled to graduate in January 1994.

Petitioner's parents live outside the district. Although he has a good relationship with his mother, petitioner states that he and his father are "estranged" and "cannot live peacefully together." For this reason, petitioner left his parents' home and moved to the State of Florida, where he attended school for a period of time. In April 1992, petitioner returned to New York and moved into his aunt and uncle's home at 176 Willow Street, Garden City, within the district. Petitioner asserts that 176 Willow Street is his actual and only place of residence and that he intends to remain there. Petitioner has submitted his driver's license and library card, both of which bear the 176 Willow Street address, as well as a bill in his name for telephone service at that address.

On February 22, 1993, the district's director of pupil personnel services ("the director") notified petitioner's parents, as well as his aunt, of the district's determination that petitioner did not reside in the district. According to the director, the district's decision was based on "eyewitness accounts of a district employee." The director stated that, in light of these reports, petitioner would not be permitted to continue in attendance at Garden City High School.

Petitioner's mother and uncle submitted statements to the district affirming that petitioner permanently resided in his uncle's home at the Garden City address. On March 19, 1993, however, the district's superintendent of schools ("the superintendent") upheld the director's decision, finding that petitioner was not entitled to attend school in the district. Notwithstanding his determination, the superintendent stated that, "since it would be unduly disruptive to remove Alexander from school at this point in the academic year," petitioner would be permitted to complete the 1992-93 school year at Garden City High School. Petitioner commenced this appeal on April 14, 1993.

At the outset, I find that the superintendent's determination failed to comply with the directives set forth in the Regulations of the Commissioner of Education. Pursuant to the Regulations, the written notice advising parents of an adverse residency determination must include, "... the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools ..." (8 NYCRR 100.2[y][2]). The superintendent's March 19, 1993 determination, excluding petitioner from the district, simply states, "I have reviewed all information regarding the residency of Alexander Diaz." Although the record before me is sufficient to permit a thorough review of this matter, respondent is admonished henceforth to supply students and their parents with proper notice, including the factual findings upon which the district's adverse residency determinations are based.

Education Law '3202(1) provides:

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 (Education Law '3202[1]).

The purpose of the statute is to limit the obligation of school districts to provide tuition-free education only to students whose parents or legal guardians reside within the district (Appeal of Stokes, 32 Ed Dept Rep 93; Appeal of Wilkerson, 32 id. 58).

Respondent contends that petitioner does not actually reside at 176 Willow Street, Garden City. In an affidavit opposing the petition, the superintendent states:

Annexed hereto as Exhibit A is a statement from District Investigator Edward A. Tacchi regarding his observations of Alexander Diaz' movements before and after normal school days. As is clear from Mr. Tacchi's report, at no time was Mr. Diaz observed to be going to or from the home in Garden City in which he claims to reside. Instead he was observed driving only to and from the home of his parents in Uniondale.

Mr. Tacchi's alleged statement, however, is not attached to the superintendent's affidavit, nor does it appear anywhere in the record. Respondent, therefore, has submitted no direct evidence that petitioner does not physically reside at 176 Willow Street. Because the burden of proof regarding residence lies with the party alleging a change (Appeal of Blagrove, 32 Ed Dept Rep ___, Decision No. 12937, dated June 3, 1993), I must dismiss respondent's contention that petitioner does not physically reside in the district.

A student's mere presence in a school district, however, is not enough to confer residency status. A child's residence is presumed to be that of his parents or legal guardians (Appeal of Colas, 32 Ed Dept Rep 128; Appeal of Pinto, 30 id. 374). That presumption can be rebutted, however, by establishing that the pupil is an emancipated minor (Appeal of Werher, 31 Ed Dept Rep 186, 188; Appeal of Forde, 29 id. 359, 361). Petitioner, who appears in this matter without the assistance of counsel, appears to argue that he is, in fact, emancipated, and that he has established a residence in his uncle's Garden City home.

For purposes of establishing residency under Education Law '3202, a student is considered emancipated when he or she is beyond the compulsory school age; is living separate and apart from his or her parents in a manner inconsistent with parental custody and control; is not receiving any financial support from his or her parents; and has no intent to return home (Appeal of Werher, 31 Ed Dept Rep 186, 188, supra). Applying these factors to the record before me, I find that petitioner is not emancipated. Although he lives apart from his parents, petitioner does not live in a manner inconsistent with his mother's custody and control.

In a written statement, petitioner's mother suggests that she personally enrolled her son in Garden City High School. She states, "when we enrolled Alexander in Garden City High School, we chose not to go into the details of why Alexander does not reside with my husband and me (emphasis supplied)." Upon receiving the director's letter of February 22, 1993, moreover, it was petitioner's mother who requested an appeal. By letter dated March 1, 1993 to the superintendent, petitioner's mother stated, "I am hereby appealing your decision and request a formal hearing." In his own affidavit, petitioner states that he lives without expense in his uncle's home, but that "[a]ny major expenses that might occur would be handled by my mother." In light of the foregoing, I must conclude that petitioner is not living in a manner inconsistent with his mother's custody and control (see, e.g., Appeal of Popp, 31 Ed Dept Rep 546; Matter of Hill, 23 id. 338). Petitioner has not demonstrated that he is emancipated, therefore, and has not rebutted the legal presumption that he resides with his parents.

Petitioner is, however, in unique and somewhat fragile educational circumstances. As indicated, he has only recently returned to a program of regular education. Further, respondent does not deny petitioner's assertion that he is scheduled to graduate in approximately four school months. For these reasons, transfer to a new school district at this point would be disruptive and contrary to petitioner's educational interests. I will therefore direct respondent to allow him to continue in attendance without payment of tuition for the first semester of the 1993-94 school year (Appeal of Forde, 29 Ed Dept Rep 359, 362; Matter of Busch, 24 id. 379).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED, and

IT IS ORDERED that respondent permit petitioner to continue in attendance without the payment of tuition for the first semester of the 1993-94 school year; and

IT IS FURTHER ORDERED that respondent henceforth supply students and their parents with factual findings adequate to explain the basis of the district's adverse residency determinations, as required by 8 NYCRR 100.2(y)(2).

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