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Decision No. 14,208

Appeal of DORA JUAREZ, on behalf of KAROLIN PIETROGIACOMO, from action the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,208

(August 31, 1999)

Douglas A. Libby, Esq., attorney for respondent

MILLS, Commissioner--.Petitioner appeals the determination of the Sewanhaka Central High School District (respondent) that Karolin Pietrogiacomo is not a resident of the district. The appeal must be sustained.

Petitioner is a resident of respondent’s district, and is Karolin Pietrogiacomo's aunt. Karolin, who is 16 years of age, moved in with petitioner in April 1998. Karolin’s biological mother, petitioner’s younger sister, lives in Peru. A third sister and her husband, who live in Baltimore, Maryland, adopted Karolin in 1996. Karolin came to live with petitioner in respondent's district because she could not get along with her adoptive mother and father. The adoptive parents gave the following reason for Karolin’s move: "Peer pressure and the need [to] identify and relate to people her own age made our relationship very tense, defying and a battle of willpower." Because of this conflict, Karolin moved to Peru to live with her grandparents in 1997, prior to moving in with petitioner in April 1998. The adoptive parents and petitioner agree that this arrangement is in the best interests of Karolin, and Karolin wants to live with petitioner.

On September 8, 1998, petitioner sought Karolin’s admission to respondent's schools. By letter dated September 10, 1998, respondent's assistant to the superintendent advised petitioner that Karolin was not entitled to attend the schools of the district on the basis of "parental residence out of district." By letter dated September 15, 1998, petitioner requested an appeal of that determination. By letter dated September 25, 1998, petitioner was notified in writing that Karolin would be conditionally admitted to respondent's schools pending the administrative review. On September 28, 1998, a hearing was held before respondent's administrative review officer. On October 6, 1998, the administrative review officer affirmed the initial determination that Karolin was not a district resident. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on November 23, 1998.

Petitioner contends that Karolin resides with her and that Karolin's adoptive parents have relinquished custody and control of Karolin to her. Respondent contends that petitioner has failed to rebut the presumption that Karolin's residence is with her adoptive parents.

Before reaching the merits of the appeal, I will address a procedural objection raised by respondent. Respondent states that the petition that was served upon the district was not verified, as required by 8 NYCRR "275.5, which states that: "All pleadings shall be verified. The petition shall be verified by the oath of at least one of the petitioners. . . ." The petition sent to my Office of Counsel contains a verification by petitioner, dated November 9, 1998. Therefore, the petition has been properly verified (Appeal of a Student with a Disability, 37 Ed Dept Rep 70, Decision No. 13,807; Appeal of Moravia Teachers' Association, 36 id. 413, Decision No. 13,764).

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 the 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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151, Decision No. 12,787). 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, Decision No. 12,729; Matter of VanCurren and Knop, 18 id. 523, Decision No. 9,950). In making a determination of residency for a child not living with a custodial parent, a board of education must consider several factors including the extent of time the child actually lives in the district (Vaughn, et al. v. Bd. of Ed., 64 Misc2d 60; Appeal of Menci, 35 Ed Dept Rep 61, No. 13,465).

Although a separate residence is not established when a student is living with someone other than a parent solely to take advantage of the schools of the district (Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of a Student with a Disability, 37 id. 29, Decision No. 13,796; Appeal of Brutcher 33 id. 56, Decision No. 12,973), a student may establish residence apart from his parents for other bona fide reasons, such as family conflict (Appeal of Menci, supra; Matter of Staulcup, 20 Ed Dept Rep 11, Decision No. 10,292). Therefore, where there are overriding reasons for establishing one's residence apart from one's parents, aside from taking advantage of the educational programs of the district, and all the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (Matter of Moncrieffe, 121 Misc2d 395; Appeal of Menci, supra).

The central issue in this case is whether Karolin's adoptive parents have relinquished custody and control of their daughter to petitioner. Respondent contends that they have not relinquished such custody and control, based on petitioner's testimony at the hearing that Karolin's adoptive parents send money for food, clothing and things like the movies; that petitioner will discuss matters with Karolin's adoptive mother; and on Karolin's testimony at the hearing that she plans to visit her adoptive parents on vacations and summers while in high school and college. Also, respondent district bases its determination on the adoptive parent's statement that the living arrangement will be for one or two years.

In making its determination, respondent relied heavily on the testimony of petitioner and Karolin at the September 28, 1998 hearing. While a recorded transcript was taken of the September 28, 1998 residency hearing, respondent has not furnished a copy of the recorded transcript in the record before me. Instead, respondent reports on the testimony of petitioner and Karolin. In reviewing this evidence, I am aware that this is respondent's account of the testimony of petitioner and Karolin, and have weighed this evidence accordingly.

Petitioner states that she is providing Karolin with food, clothing and all other necessities and full financial support. Petitioner states that Karolin occasionally received small amounts of money from her adoptive parents in the past, but that they stopped providing such funds in October 1998 and have no plans to provide such money in the future. I do not find the fact that Karolin has occasionally received small amounts of money from her adoptive parents to be dispositive of the issue of custody and control. Based on the evidence before me, I find that petitioner is financially supporting Karolin and providing for her necessities.

Respondent points to the fact that petitioner discusses Karolin with her sister as proof that petitioner is not making decisions about Karolin. However, it would be normal for petitioner to discuss Karolin with her sister, and I do not find such discussions to support respondent’s conclusion that petitioner is not making decisions on Karolin’s behalf.

Respondent also points to Karolin's testimony that she plans to visit her adoptive parents on vacations and summers as proof that she continues to reside with her adoptive parents. 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, Decision No. 13,570; Appeal of McMullan, 29 Ed Dept Rep 310, Decision No. 12,304). Petitioner testified that Karolin continues to love her adoptive parents, even though she has difficulty getting along with them. I do not find the fact that Karolin plans to spend holiday and vacation time with her adoptive parents dispositive of the issue of custody and control. The record reflects that before moving in with petitioner, Karolin spent holiday and vacation time with petitioner.

Respondent points to the statement by Karolin's adoptive parents that they anticipate that the living arrangement with petitioner will last for one or two years. While not entirely clear, this statement appears to be made in recognition of the fact that the living arrangement may not work out. Also, there is evidence in the record that the living arrangement will not persist beyond two years because Karolin will be leaving for college. When viewed in the context of the totality of the facts, this statement is insufficient to establish that the transfer of custody and control is not permanent.

Karolin’s move to petitioner's home was caused by her inability to get along with her adoptive parents. This is not a case in which the student's residence has been changed from that of her parents merely to take advantage of the educational program of another school district. Rather, there is a valid reason unrelated to the district's educational program, which prompted Karolin's move. Based on the record before me, I find that petitioner has adequately rebutted the presumption that Karolin's residence is with her adoptive parents and conclude that Karolin's actual and only residence is with petitioner (Matter of Staulcup, supra).

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

IT IS ORDERED that respondent allow Karolin Pietrogiacomo to attend school in the Sewanhaka Central High School district without the payment of tuition.

THE APPEAL IS SUSTAINED.

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