Decision No. 13,600

(April 24, 1996)

Mastroianni & Mastroianni, Esqs., attorneys for respondent, Tomasina Cuda Mastroianni, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Westbury Central School District ("respondent") that they and their nephews are not residents of the district. The appeal must be sustained.

Petitioners allege that they are residents of Nassau County and reside within the Westbury Union Free School District at 807 Broadway, Westbury. They previously lived in Brooklyn. Petitioner Anthony Brazile is a graduate student and church pastor. Petitioner Brenda Bradford is a homemaker. The children at issue are related by blood to petitioner Brenda Bradford. The children's mother, Trina McLeod, is deceased, and the whereabouts of their biological father are unknown. Tyrik and Carl are also foster children of the petitioners. Herbie was placed in petitioners' custody by his grandmother, Shirley Robinson, who was unable to care for him. All three children have allegedly been living with petitioners in respondent's district since June 1995.

In early September 1995, petitioners attempted to register the children in respondent's schools. On September 13, 1995 respondent's director of pupil personnel services, Dr. Berliner, met with petitioners regarding the children's registration. Dr. Berliner informed petitioners that a custody order was necessary for Herbie and directed petitioners to go to a Nassau County court even though she informed petitioners that it would take up to three weeks to see a Nassau County judge. Petitioners informed Dr. Berliner that they would go to Kings County court to secure the order because previous legal proceedings took place in Kings County and because an official with the Child Welfare Administration advised them to go there.

In accordance with respondent's registration policy, petitioners submitted a current mortgage statement, utility bill, current telephone bill, letters of introduction from the Child Welfare Administration, an oil company bill and the New York State Drivers License of petitioner Brazile, all showing residency within respondent's district. Petitioners also informed respondent that they had registered to vote in Nassau County by virtue of their residence in Westbury. By letter dated September 28, 1995, respondent decided to exclude the children from school, since the Kings County Family Court Order petitioner Bradford obtained at respondent's request indicated that petitioners resided in Kings County. Additionally, respondent claimed that the Department of Social Services (DSS) forms which petitioners submitted to establish their relationship with Tyrik and Carl were outdated. By letter to respondent dated September 29, 1995, a social work supervisor of the Human Resources Administration, Child Welfare Administration, confirmed that Tyrik and Carl were in the custody of the Commissioner of Social Services and had been placed in foster care with petitioners at their home in Westbury.

The next day, respondent's investigator visited petitioners' residence at 807 Broadway at 4:25 p.m. and no one was home. On October 1, 1995, the following day, the investigator arrived at the home at 10:25 a.m. and, again, no one was present. On October 2, 1995, respondent's investigator returned to the address and petitioner Brazile and the three boys were there. In his affidavit, respondent's investigator questioned why petitioner Bradford was not at home when she stated that she was a housewife and had no vehicle registered in her name. On October 31, 1995, respondent's investigator visited the petitioners' former address in Brooklyn and checked the bell register. Petitioners' former apartment had an "A. Day" listed on the bell, and when the investigator rang the bell, a female voice responded. When the investigator asked for Miss Bradford, the unknown female told him to come upstairs. Respondent's attorney concludes in her affidavit that because a female voice acknowledged the name "Miss Bradford", that means that petitioners still lived at the Brooklyn address.

In a fifteen page letter to respondent dated October 5, 1995, petitioners explained that they were residents of the district, that they had received outdated DSS-2999 forms from their caseworker which nevertheless contained all pertinent information, and that the custody order had been obtained in Kings County because previous legal proceedings regarding the children had taken place there -- not because they were Kings County residents -- and because they were informed by respondent's director of pupil personnel services that it would take up to three weeks to see a Nassau County judge. By letter dated October 10, 1995, respondent's director of pupil personnel services notified petitioners that she had received their letter and submitted it to the school attorney for advice.

By letter dated October 16, 1995, respondent's director of pupil personnel services notified petitioners that she was not authorized to enroll the children in the district because the school district attorney had information demonstrating that petitioners did not meet the district's residency requirements. This appeal ensued. Petitioners' request for interim relief was initially denied on November 2, 1995. Petitioners thereafter sought legal counsel and a cooperating attorney with the New York Civil Liberties Union-Nassau and Suffolk Counties requested that the Commissioner reconsider the interim order. An interim order requiring respondent to admit petitioners' children to its schools was granted on November 16, 1995.

Petitioners allege that they are residents of the district and that respondent's residency determination is incorrect. Petitioners also seek compensatory education for the children since the district refused to admit them in a timely manner and they are now behind students who started the school year on time. Petitioners further seek an order requiring respondent to produce for petitioners the evidence respondent relied on in concluding petitioners are not residents of the district.

Respondent contends that petitioners are not the parents or legal guardians of the children and have no standing to maintain this appeal. Respondent also contends that petitioners are not residents of the district. Respondent also raised several procedural issues.

Before reaching the merits, I will address respondent's procedural defenses. Respondent claims that the petition fails to state a cause of action because the allegations are vague and unclear and do not support petitioners' contention. Section 275.10 of the Commissioner's regulations provides that a petition:

In this case, the petition is quite clear. Respondent excluded Herbie, Tyrik and Carl from its schools on the basis of residency and petitioners seek to overturn that determination. I note that respondent has adequately addressed petitioners' allegations in its answer. Therefore, I will not dismiss the appeal on that basis (Appeal of Rackley, 35 Ed Dept Rep 5; Appeal of Schechter, et al., 28 id. 118).

Respondent also contends that petitioners' appeal is premature because petitioners failed to appeal the denial of admission to respondent board. The Commissioner's regulations, [8 NYCRR 100.2(y)] which govern determinations of student residency, permits a board of education or its designee to make a residency determination and requires a board or its designee to provide written notice of its determination to a parent, child or person in parental relation. The notice must specify that the determination may be appealed to the Commissioner of Education. In this case, respondent's designee, the director of pupil personnel services, made a residency determination and that determination is directly appealable to the Commissioner. There is no requirement that petitioners appeal the residency determination to respondent board. Therefore, I decline to dismiss the appeal as premature.

With respect to the merits, Education Law '3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curren and Knop, 18 id. 523). In this case, the mother of the children is deceased and there is no indication that the children have another parent. Petitioners allege that the children are related to them and that they assumed custody of Herbie when his grandmother was no longer able to care for him. They provide a Kings County Court Order giving petitioner Bradford temporary custody of Herbie. Moreover, from the documentation submitted, it is undisputed that petitioners are the legal foster parents of Tyrik and Carl. Accordingly, I find that the children must be presumed to reside with petitioners, their legal guardians, and that respondent has not rebutted that presumption.

Petitioners have also presented to respondent substantial evidence that they reside within the district, including a mortgage statement, utility bill, telephone bill, drivers license, proof of voter registration and all documents related to their foster children, Tyrik and Carl. In the face of this compelling evidence, respondent relied only upon alleged inconsistencies in petitioners' claims -- a Brooklyn address on the Kings County court order and petitioner Bradford's absence from the address in respondent's district during an attempted home visit -- to support its conclusion that petitioners are not district residents. However, I find that the overwhelming weight of the evidence in the record establishes that petitioners reside in respondent's district.

Indeed, it is difficult to fathom what additional proof petitioners could have offered that would have convinced the district to admit these children. As I have noted previously, while respondent is legally obligated to provide tuition free education only to residents, where, as here, petitioners offered substantial proof of residency, the ongoing denial of admission constitutes a breach of duty. In Appeal of Caldera, 35 Ed Dept Rep ___, Decision No. 13579, dated March 21, 1996, I encouraged respondent to be flexible in its analysis when presented with a non-traditional living arrangement. Obviously, respondent has again failed to recognize the paramount right of all children to a free public education, regardless of their unique family circumstances or other particular characteristics. I urge respondent to thoroughly review its residency policy and procedures for determining residency to ensure compliance with all applicable laws.

I have considered respondent's remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent immediately admit Herbie McLeod, Tyrik McLeod and Carl Bradford to the schools of the Westbury Union Free School District without the payment of tuition.

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