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Decision No. 13,003

Appeal of SUSAN LANGER from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 13,003

(September 13, 1993)

Henry Langer, Esq., attorney for petitioner

Saperston & Day, P.C., attorneys for respondent, Roger B. Simon, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that her son is not a resident of the Williamsville Central School District ("the district"). The appeal must be sustained.

Petitioner's son, Jonathan, has been enrolled in respondent's district since the 1991-92 school year when he entered kindergarten. He is currently seven years old and has attended the Maple East Elementary School for the past two years.

Petitioner claims that her son has resided with her parents who have lived within the district since his birth. Petitioner, who resides in Amherst, outside the district, states that as a single parent whose employment requires her to work evenings and weekends, she gave her parents primary responsibility for Jonathan's care. Petitioner claims that Jonathan's father provides no support to her son and has never even seen him.

At the district's request, both petitioner and her parents completed resident and parent custody forms in October 1991 which named Jonathan's grandparents as responsible for him financially and legally. The forms indicate that Jonathan's permanent and only residence is with his grandparents and that his living arrangement with them was not instituted solely to attend school in the district.

Although Jonathan lived with his grandparents, petitioner remained involved in her son's education, signing some of his report cards and attending parent-teacher conferences. In addition, soon after his enrollment in respondent's district, Jonathan's grandmother gave petitioner permission to pick up her son from school at any time. In the fall of 1992, petitioner wrote to Jonathan's teacher, requesting a book report form and inquiring about his progress. According to respondent, in March 1993, the principal of Maple East Elementary School was informed that petitioner was dropping Jonathan off at school in the morning and having him bused to an after school program at her request. In his affidavit, the district's pupil personnel director claims that Jonathan told his teachers and social worker he lives with his mother but didn't attend his local public school because she did not like its after school program. In addition, respondent asserts that the Amherst Central School District includes Jonathan in its census as living with petitioner and attending Kadimah, a local private school.

By letter dated March 31, 1993, respondent's pupil personnel director requested a meeting with petitioner regarding Jonathan's residency. A meeting scheduled for April 6, 1993 was canceled at petitioner's request. In response to petitioner's request that she have an opportunity to question those who had information pertinent to her son's residence, the pupil personnel director advised her in writing on April 8, 1993, that he would contact her after April 19, 1993 to enable the principal to attend. That same week, petitioner notified the school that Jonathan would be taking the "regular bus" home.

Between April 22, 1993 to May 4, 1993 respondent had a private firm investigate Jonathan's residence. According to its unsworn report, the investigator observed petitioner on four occasions driving Jonathan to school from her residence in Amherst.

By letter dated May 24, 1993, respondent's assistant superintendent informed petitioner of its determination that Jonathan was not a resident of the district and of his exclusion from attendance there effective June 23, 1993, the last day of school. The letter failed to provide any information regarding the basis for its decision. Although the letter advised petitioner that she could submit information regarding her son's right to attend school in the district, petitioner alleges that she never submitted any information because she was waiting for respondent to reschedule the meeting which had been previously canceled. The letter also indicated that the decision to exclude her son from school could be appealed to the Commissioner of Education "within 30 days of ... [his] exclusion." At petitioner's request, the assistant superintendent met with her counsel on June 3, 1993. Petitioner commenced this appeal on July 7, 1993.

Prior to a review of the merits, a procedural issue must be addressed. Respondent contends that this appeal must be dismissed as untimely. Section 275.16 of the Regulations of the Commissioner requires that an appeal be instituted within 30 days after the "making of a decision or the performance of the act complained of," except where the Commissioner excuses a delay in commencing an appeal for good cause (8 NYCRR 275.16). Respondent asserts that its letter dated May 24, 1993, constitutes its decision to exclude petitioner's son. Since petitioner did not commence this appeal until July 7, 1993, respondent argues that the appeal must be dismissed as untimely. Petitioner contends that she relied upon the information provided in respondent's May 24, 1993 letter which advised her of her right to commence an appeal within 30 days of her son's exclusion. Although the Commissioner's Regulations provide for an appeal within 30 days of a district's determination, respondent's notice of May 24, 1993, incorrectly advised petitioner that she had 30 days from the date of her son's exclusion from school to file an appeal. Petitioner's son was excluded from school on June 23, 1993 and this appeal was filed on July 7, 1993, within thirty days of his exclusion. Since I find that petitioner's reliance on respondent's notice constitutes good cause for her delay in filing this appeal beyond the thirty days of its determination, her failure to file a timely appeal is excused.

Petitioner contends that respondent's determination violated her due process rights by failing to provide proper notice and an opportunity to present evidence prior to making its decision. Section 100.2(y) of the Regulations of the Commissioner sets forth the procedure a board of education must follow in determining questions of residency. In addition to notice of the right to appeal, the regulation requires, in relevant part, that the notice include:

the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools pursuant to subdivision (x) of this section;

In addition, the regulation requires that:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district. (Emphasis added) 8 NYCRR 100.2(y)

Other than its reference to census data and to "information" from "staff" regarding Jonathan's status, both respondent's March 31 and May 24, 1993 letters failed to provide petitioner with notice of the basis for its decision.

Although respondent's pupil personnel director assured petitioner in his letter of April 8, 1993, that the initial meeting to discuss Jonathan's residence would be rescheduled after April 19, 1993, the next letter petitioner received was from the district's assistant superintendent advising her of respondent's determination that Jonathan was not a resident of the district. Although the letter advised petitioner of her right to submit additional information regarding her son's right to attend the schools of the district, no meeting was held prior to respondent's determination nor is there evidence that such an opportunity had been extended.

Even after receiving notice of respondent's determination and her right to submit additional information after the fact, petitioner did not do so claiming that she continued to wait for respondent to schedule a meeting for that purpose. On June 3, 1993, a meeting was held at petitioner's request. While both parties agree that no information was submitted on petitioner's behalf at that meeting, they disagree as to the purpose of the meeting. According to petitioner's counsel, he requested the meeting to obtain information regarding the basis for respondent's determination. According to respondent, petitioner was advised prior to the meeting of her right to submit additional information at that time. In any case, since respondent's notice failed to provide petitioner with the basis of its decision in violation of Commissioner's regulation, the purpose of the meeting is irrelevant. Without prior knowledge of the basis for respondent's decision, petitioner could not be expected to prepare and submit the relevant information in response. Thus, I find that respondent's determination of this student's residency was made without giving petitioner an adequate or timely opportunity to submit additional information as the regulation requires.

Presumably, petitioner has now been informed following the June 3, 1993 meeting and through this appeal of the basis for respondent's determination. In the context of this appeal, petitioner now presents evidence of her son's residence in the district. Petitioner submits her parents' affidavit dated July 6, 1993, which states that they are his primary caretakers. In addition, petitioner's attorney submits an affidavit refuting the surveillance reports which states that, except on his birthday and when his grandmother was ill, petitioner's son was transported to school from his grandparents' home during the period in question. Regarding Amherst's census data indicating Jonathan's school status, petitioner correctly argues that it should be afforded little weight in the absence of proof regarding the source and use of such information.

A child's residence is presumed to be that of his parent (Matter of Warren, 25 Ed Dept Rep 403). The presumption, however, can be overcome with evidence of a permanent transfer of parental control (Appeal of McMullan, 29 Ed Dept Rep 310). Where the sole reason a child is residing with someone other than his parent is to take advantage of the schools of the district, a separate residence is not established (Appeal of McMullan, supra). Here, petitioner has demonstrated financial and other legitimate reasons for having her son reside with her parents. Moreover, the fact that a child continues to maintain a relationship with his parent is not determinative in resolving the issue of the child's residence (Appeal of Pinto, 30 Ed Dept Rep 374). As I previously stated in Appeal of McMullan, supra at 314:

... where the hardships of a single parent make it necessary to relinquish primary responsibility for raising one's child to another, the presumption that the child's residence is with the parent may be overcome. In such cases, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child to another is not determinative in resolving the question of the child's residence. Therefore, despite respondent's charge that the child had been observed spending the night at her mother's home on occasion, the child may be a resident of... [the] district nonetheless....

In this case, I find that respondent has demonstrated nothing more than Jonathan's occasional overnight stay with his mother as well as her ongoing involvement in his education.

As the party challenging petitioner's residency, the board of education has the burden of establishing that petitioner's son does not reside in its district (Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Lenz, 32 id. 132). In addition to its failure to provide petitioner with the proper notice required by Commissioner's regulation or a timely opportunity to submit information prior to its determination, I find that even after its determination was made, respondent failed to provide petitioner with a meaningful opportunity to submit additional evidence regarding her residence. As a result, respondent lost its opportunity to adequately consider petitioner's evidence prior to making its determination, and ultimately failed to prove that petitioner's son was not a resident of the district.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit petitioner's son forthwith to the schools of the district; and

IT IS FURTHER ORDERED that within 10 days of this decision respondent revise its notice of nonresidency to a manner consistent with the requirements set forth in 8 NYCRR 100.2(y).

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