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Decision No. 14,599

Appeal of PALMA RUSSO, on behalf of her son, ANDREW, from action of the Board of Education of the Haldane Central School District regarding residency.

Decision No. 14,599

(July 12, 2001)

Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Haldane Central School District ("respondent") that her son, Andrew, is not a district resident. The appeal must be dismissed.

On or about March 28, 2001, petitioner attempted to enroll Andrew in respondent"s district and completed a new student enrollment form indicating that she resided at 152 Columbus Avenue, Tuckahoe, New York and that Andrew resided at 333 Route 301, Cold Spring, New York ("Cold Spring"). Petitioner also submitted an affidavit of legal responsibility stating that due to a "family emergency," Andrew would reside in Cold Spring with his aunt, Gail Cerini, "until further notice." Thereafter, in response to the district"s request that petitioner provide more information regarding the alleged change in legal responsibility for Andrew, petitioner submitted a residential lease dated March 29, 2001, for the Cold Spring residence listing Ms. Cerini as the landlord and petitioner and Andrew as the only occupants. Petitioner also submitted a notarized statement signed by both petitioner and Ms. Cerini indicating that petitioner and Andrew lived with Ms. Cerini at the Cold Spring residence. Subsequently, respondent"s superintendent, James DiNatale, contacted a co-owner of the Cold Spring residence, Ms. Yannitelli. Ms. Yannitelli stated that Ms. Cerini rents the apartment from her and that she had no information of anyone living there other than Ms. Cerini and two girls. Moreover, Ms. Yannitelli stated that Ms. Cerini did not have the authority or the ability to sublet the apartment to anyone.

On April 5, 2001, Dr. DiNatale spoke to petitioner about the inconsistencies in the documents she submitted to the district. Petitioner was unwilling to respond to Dr. DiNatale"s inquiries and he advised her that based on the information before him, Andrew would not be admitted to the district. By letter dated April 9, 2001, Dr. DiNatale advised petitioner that Andrew was not eligible to attend the district"s schools because his residency in the district was not permanent and further, that petitioner had not demonstrated that she ceded full care, custody and control of Andrew to anyone residing within the district. This appeal ensued. Although petitioner"s request for interim relief was granted on May 7, 2001, respondent asserts that Andrew has not been registered and has not attended school within the district.

Petitioner requests that Andrew be permitted to attend school within respondent"s district. Respondent contends that petitioner resides outside of the district and that she has not relinquished parental control of Andrew. Respondent also requests that petitioner be required to reimburse the district for tuition for the period of time that Andrew attended school within the district.

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 to students whose parents or legal guardians reside within the district (Appeal of Pierre, 40 Ed Dept Rep __, Decision No. 14,551; Appeal of Lapidus, 40 id. ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377).

Residence is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside within the district (Appeal of Silvestro, 40 Ed Dept Rep ___, Decision No. 14,476; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016). Additionally, a child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Cortes, 38 id. 114, Decision No. 13,818). However, this presumption may be rebutted (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Brown, 38 id. 159, Decision No. 14,007; Appeal of Murphy, 37 id. 162, Decision No. 13,831). 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 Juarez, supra; Appeal of Gorrasi, 35 Ed Dept Rep 68, Decision No. 13,467). 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 presence remains with the parent (Appeal of Bogetti, supra; Appeal of a Student with a Disability, 37 Ed Dept Rep 173, Decision No. 13,833).

In this case, petitioner has failed to establish residency within respondent"s district. When petitioner initially attempted to register Andrew in the district, petitioner stated that she resided outside the district and that Andrew would be residing in the district with Ms. Cerini temporarily. It was only after the district questioned this arrangement that petitioner attempted to argue that both she and Andrew had actually moved into Ms. Cerini"s residence. Additionally, the record contains conflicting information regarding the nature of the alleged living arrangement with Ms. Cerini. Although petitioner was provided the opportunity to clarify inconsistencies regarding the information she provided to the district, she refused to do so. Moreover, while petitioner requested interim relief to allow Andrew to continue to attend school within respondent"s district pending the outcome of this appeal, she has apparently failed to register or send Andrew to school within the district. In short, there is insufficient evidence in the record to indicate that petitioner and Andrew have established a bona fide residence in the district or that petitioner has transferred full custody and control of Andrew to Ms. Cerini. Accordingly, I do not find respondent"s decision to deny petitioner"s son admission to its schools arbitrary, capricious or unreasonable.

With respect to respondent"s request that petitioner pay tuition for the period of time Andrew attended its schools while not a district resident, the Commissioner of Education does not have any statutory authority to make a finding awarding student tuition (Appeal of Marino, 40 Ed Dept Rep ___, Decision No. 14,404; Application ofPierrelus, 37 id. 502, Decision No. 13,913). Respondent may seek payment for a nonresident enrolled in its schools in a court of competent jurisdiction (Bd. of Educ. ofLawrence Union Free School District v. Gaffney, 233 AD2d 357; Application of Pierrelus, supra).

THE APPEAL IS DISMISSED.

END OF FILE