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Decision No. 13,997

Appeal of LUZ RIVERA, on behalf of JESUS E. GOMEZ, from action of the Board of Education of the City School District of the City of Geneva regarding residency.

Decision No. 13,997

(August 21, 1998)

Monroe County Legal Assistance Corp., attorneys for petitioner, Michael L. Lausell and Wendy A. Walters, Esqs., of counsel

McGowan & Brownell, Esqs., attorneys for respondent, William F. McGowan, Esq., of counsel

MILLS, Commissioner.--Petitioner, on behalf of her grandson, Jesus, challenges the determination of the Board of Education of the City School District of the City of Geneva ("respondent") that Jesus is not a district resident. The appeal must be sustained.

In August 1997, petitioner met with respondent's vice principal Thomas Douglas and requested that Jesus be admitted to the district's schools as a resident. Mr. Douglas informed petitioner that she needed to provide documentation in support of her claim of residence and custody of Jesus, and suggested the types of documents that would be acceptable. Petitioner returned on September 2, 1997 with a sworn affidavit signed by Jesus' mother, attesting to her residence in Puerto Rico and granting custody of Jesus to petitioner. Mr. Douglas informed petitioner that he did not have the authority to admit Jesus as a resident of the district on a tuition-free basis. This appeal ensued. On September 24, 1997, I granted petitioner's request for interim relief pending a final determination of residency by respondent or its designee.

Petitioner contends that she was never given written notice of respondent's residency determination as required by 8 NYCRR "100.2(y), nor was she notified of the necessity of seeking a determination by respondent's superintendent ("superintendent"). She asserts that Jesus permanently resides with her and that she provides him with food, clothing and all other necessities, and has full responsibility for his medical care and education. Petitioner claims that Jesus' mother has physical and emotional limitations that hinder her ability to care for Jesus. She also claims that she moved from Puerto Rico to respondent's district to obtain better medical services for herself.

Respondent contends that the petition should be dismissed because petitioner failed to exhaust her administrative remedies by not requesting a superintendent's hearing. Respondent argues that it did not provide a written residency determination because only the superintendent is authorized do so. Respondent also argues that petitioner has failed to overcome the presumption that Jesus lives with his mother in Puerto Rico and contends that Jesus is not a resident of its district.

Initially, I will address respondent's procedural objection. Section 100.2(y) of the Commissioner's Regulations provides, in pertinent part:

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. When the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is neither a resident of such district nor entitled to attend its schools . . ., such board or its designee shall, within two business days, provide written notice of its determination to the child's parent, to the person in parental relation to the child, or to the child, as appropriate.

Section 100.2(y)(2) further provides that the written notice must state, among other things, ". . . the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools . . .."

Petitioner alleges that Mr. Douglas orally refused to admit Jesus to respondent's school on a tuition-free basis. Respondent contends that Mr. Douglas was not authorized to admit Jesus and did not deny him entrance. However, petitioner's reply includes a letter from respondent's attorney to petitioner's attorney dated September 10, 1997 which appears to be a final determination that Jesus is not a resident of the district. The letter states that the affidavit signed by Jesus' mother is inadequate proof of petitioner's custody and that respondent "will honor a court order transferring custody, and thereafter provide the child with a tuition-free education . . ." Furthermore, the letter indicates that respondent's attorney copied the superintendent with the letter. Thus, it is disingenuous for respondent to state that petitioner has failed to exhaust administrative remedies when its attorney, in fact, delivered respondent's determination. Therefore, I will not dismiss the petition for failure to exhaust administrative remedies.

Turning to 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 and related services to students whose parents or legal guardians reside within the district (Appeal of a Student with a Disability, 37 Ed Dept Rep 173; Appeal of Brutcher, 33 id. 56). 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). However, that presumption can be rebutted. 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 Simond, 36 Ed Dept Rep 117; Appeal of Garretson, 31 id. 542). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child's residence remains with the parent (Appeal of a Student with a Disability, supra; Appeal of Aquila, 31 Ed Dept Rep 93; Appeal of Garretson, supra). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of a Student with a Disability, supra; Appeal of Tunstall, 27 Ed Dept Rep 144), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Garretson, supra; Appeal of Pernell, 30 Ed Dept Rep 380).

Where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Ritter, 31 Ed Dept Rep 24). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Menci, 35 Ed Dept Rep 61; Matter of Staulcup, 20 id. 11) or the hardships of single parenting (Appeal of McMullan, 29 Ed Dept Rep 310). 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 is not determinative in resolving the question of the child’s residence (Appeal of Lebron, 35 Ed Dept Rep 359; Appeal of McMullan, supra).

Respondent contends that petitioner has not overcome the presumption that Jesus resides with his mother. Respondent argues that Jesus' mother can revoke her affidavit assigning custody at any time and there is no evidence that she is actually divorced or was granted custody in the divorce. Respondent raises numerous questions regarding petitioner's past role in caring for Jesus. Respondent does not question petitioner's residence within the district, but argues that Jesus is living with her solely to take advantage of the schools in the district.

In this case, petitioner has rebutted the presumption that Jesus' actual and only residence is with his mother in Puerto Rico. Petitioner states that the reason for the transfer in custody is Jesus' mother's inability to care for him due to physical and emotional problems. The affidavit signed by Jesus' mother gives custody and control to petitioner "without any limitation whatsoever" and states the she is a resident of Puerto Rico. Petitioner submits a document from the Ontario County Department of Social Services stating that petitioner has a Public Assistance case open for Jesus and states that she provides Jesus with food, clothing and all other necessities. As noted above, it is not necessary for petitioner to pursue a formal guardianship proceeding in Surrogate's Court. Respondent has offered no basis for its conclusion that Jesus is residing with petitioner solely to take advantage of its schools or any evidence that Jesus' mother provides support or exercises control over Jesus. Under these circumstances, I find respondent's determination that Jesus is not a resident of its district to be arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent continue to allow Jesus E. Gomez to attend school in the City School District of the City of Geneva without the payment of tuition.

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