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Decision No. 14,634

Appeal of EDITH MARBURY, on behalf of BRITTNEY, RYAN, NICHOLAS and JOSHUA MARBURY, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 14,634

(August 27, 2001)

Westchester/Putnam Legal Services, attorneys for petitioner, P. Leigh Sansone, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the City School District of the City of White Plains ("respondent") that her grandchildren, Brittney, Ryan, Nicholas and Joshua Marbury, are not residents of respondent's district. The appeal must be dismissed.

Petitioner is the maternal grandmother of the four children, ranging in ages from 11 to 5 years old. Petitioner lives within respondent's district, but the children's mother, Tia Marbury ("Ms. Marbury"), lives outside the district. Petitioner contends that the four children have always lived with her in White Plains, but that their mother has intermittently lived with petitioner and moved away just before December 2000. Petitioner states that she has always cared for the children and supervised their upbringing, because Ms. Marbury is a single parent who works very long hours including weekend overtime and is unable to care for the needs of four children. Petitioner contends that Ms. Marbury surrendered parental control over the children to petitioner, but maintains a good relationship with the children and visits with them in White Plains or at her own residence.

In December 2000, a district elementary school asked district officials to investigate the residence of Ms. Marbury and the children. At that time, the children were registered as living with their mother at petitioner's White Plains address. The request was based on a statement the prior year by one of the children that he was moving to Ossining, and observations by elementary school staff that it was difficult to reach either Ms. Marbury or petitioner by telephone at their listed contact numbers. The district commenced an investigation including surveillance by an investigator.

By letter dated February 27, 2001, district personnel advised Ms. Marbury that they had reason to believe that she and the children were living in Ossining, outside respondent's district. The letter further advised that Ms. Marbury had the opportunity to submit any information she desired concerning the right of her children to attend respondent's schools. This letter was addressed to Ms. Marbury at an Ossining address provided by the district's investigator. Petitioner asserts that Ms. Marbury did not live in Ossining, although Ms. Marbury's brother lives there. The February 27 letter was returned by the post office, noting an Ossining post office box number under the name "Marbury" and that the forwarding time had expired. The district reissued the letter on March 7, 2001, addressed to Ms. Marbury at the noted post office number. Ms. Marbury eventually received the March 7 letter, although the record does not reflect how it was delivered to her.

After discussions with district personnel, petitioner and Ms. Marbury submitted Care, Custody and Control Applications for all four children on or about March 18, 2001. By letter dated April 9, 2001, which was mailed to Ms. Marbury at a post office box in Ossining, the district advised her of its determination that the children were not district residents. The letter further advised that the children would be excluded from school as of April 20, 2001. This appeal ensued. Petitioner's request for interim relief was granted on May 23, 2001.

Petitioner asserts that the children are residents of respondent's district, that she has sole custody and control over the children, and that the children have always lived with her and intend to remain with her for the foreseeable future. Petitioner also challenges the validity of the investigation conducted by the school, and further contends that respondent violated her due process rights by failing to provide an opportunity to submit additional information and evidence concerning the children's residence in accordance with 8 NYCRR "100.2(y) and in failing to hold an evidentiary hearing. Respondent contends that its determination is rational and based upon the evidence, and requests that I uphold its decision. Respondent also raises a procedural objection, that the petition is untimely.

I will first address the procedural objection. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (see, Appeal of Lucente, 39 Ed Dept Rep 244, Decision No. 14,227). Respondent contends that the petition is untimely because it was filed more than 30 days after receipt of the district's April 9, 2001 determination. Petitioner states that she did not receive the district's determination until "several days" after the date of the letter, because the district improperly sent the letter to her brother's post office box address in Ossining, rather than to her proper home address. She first attempted to file an appeal to the Commissioner by letter dated April 22, 2001, but her submission did not comply with the regulations applicable to appeals and was returned on April 26, 2001. A proper petition was subsequently served on May 14, 2001, 35 days after the date that the determination letter was mailed.

Although petitioner appears to concede that this appeal was commenced more than 30 days from the date that she received the determination letter, the record does not disclose the exact date that Ms. Marbury received the April 9 letter. There is, therefore, no evidence in the record that the petition is in fact late, and the appeal was filed within 30 days of the five days usually allowed for mail delivery in the absence of proof of the date of actual delivery (Appeal of Spensieri, 40 Ed Dept Rep ___, Decision No. 14,419; Appeal of D.H., 39 id. 721, Decision No. 14,360).

Petitioner asserts, in any event, that any delay should be excused because she did not realize that the ineffective appeal submission on April 22 did not toll the statute of limitations, that the 30 days had almost expired before she received the notification and appeal packet from the Commissioner's Office of Counsel, that she had not yet sought legal advice, the time delay is deminimis, and because Ms. Marbury had difficulty in coordinating a time to sign her affidavit because she does not work in a set location and often works late into the evenings. Most of these excuses are unavailing. To the extent that the appeal was in fact late, good cause is not established because petitioner was unaware of the proper appeal procedures (Appeal of Goltz, 40 Ed Dept Rep ___, Decision No. 14,571; Appeal of Tomassetti, 39 id. 513, Decision No. 14,296), had thought that the initial invalid filing had tolled the limitations period (Appeal of Bluemke, et al., 39 Ed Dept Rep 447, Decision No. 14,281), or had not had time to consult with counsel (Appeal of Mitchem and Gray, 37 Ed Dept Rep 231, Decision No. 13,849). However, Ms. Marbury's documented work situation, and the fact that her affidavit is essential to the appeal, constitutes good cause especially given the apparent short delay (see, Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 476, Decision No. 14,287). I therefore decline to dismiss the appeal as untimely.

I must dismiss the appeal on the merits, however. 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 Mario D., 41 Ed Dept Rep ___, Decision No. 14,600; Appeal of Lapidus, 40 id. ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Mario D., supra; Appeal of Epps, supra), but this presumption may be rebutted (Appeal of Ramirez, 40 Ed Dept Rep ___, Decision No. 14,449; Appeal of Juarez, 39 id. 184, Decision No. 14,208; Appeal of Menci, 35 id. 61, Decision No. 13,465). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total transfer of custody and control to someone residing within the district (Appeal of Mario D., supra; Appeal of Juarez, supra; Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201). Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Beska, 39 id. 661, Decision No. 14,344). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Pernell, 30 id. 380, Decision No. 12,502), it is necessary to demonstrate that a particular location is a child's residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Rivera, 38 id. 119, Decision No. 13,997).

Moreover, 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 Epps, supra; Appeal of Ramirez, supra; Appeal of Beska, supra). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Juarez, supra; Appeal of Menci, supra) or the hardships of single parenting (Appeal of Donohue, supra; Appeal of McMullan, 29 Ed Dept Rep 310, Decision No. 12,304). 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 Juarez, supra; Appeal of Lebron, 35 Ed Dept Rep 359, Decision No. 13,570). It is also not necessarily determinative that the child continues to be covered by the parent"s health insurance where there is no indication that providing such coverage requires a financial contribution or involves control over medical care (Appeal of Burdi, 39 Ed Dept Rep 176, Decision No. 14,206).

There is a conflict in the record, among the petition, the affidavits submitted in support of the petition, and the applications provided to the district in response to the March 2001 letter, as to how much support Ms. Marbury provides for the four children. The appeal petition asserts that Ms. Marbury has on occasion provided money for the children's support but not on a consistent basis, and only if petitioner requests it to cover any shortfall to pay the month's bills. Petitioner contends that the amount of any such payments is insignificant and they are not a steady or reliable source of income to petitioner. However, in the March 2001 Care, Custody and Control Applications, Ms. Marbury indicated that she provided food, clothing and medical insurance for the students, made medical decisions for them, and claimed them as dependents for income tax purposes.

Petitioner states in her affidavit submitted with this appeal that Ms. Marbury moved out of petitioner's home several years ago, and relinquished custody of the children to petitioner at that time. Petitioner further admits that Ms. Marbury pays for the children's clothing. In her affidavit, Ms. Marbury again confirms that she makes the medical decisions and provides medical insurance, provides food and clothes, and claims the children as dependents. She further notes that this arrangement has been ongoing for several years, and does not indicate that there has been any change since she submitted the custody applications to the school district in March 2001. Ms. Marbury also states that she provides petitioner with monetary assistance only occasionally, in small amounts, if petitioner needs additional funds and requests her assistance. Since such assistance is mentioned separately in Ms. Marbury's affidavit, it is reasonable to assume that these payments are in addition to the support she provides for the children. There is no other source of support identified in the record for the four Marbury children. Petitioner does not work, and receives assistance only for five other children who live with her. Ms. Marbury further states that petitioner consults with her regarding the children's welfare, but that petitioner is authorized to make decisions on their behalf.

Based on the record, I find that petitioner has not rebutted the presumption that the children reside with their mother for purposes of Education Law "3202(1). Both petitioner and Ms. Marbury admit that Ms. Marbury continues to provide financial support for the children, which indicates that Ms. Marbury has not made a complete and permanent transfer of the care, custody and control of the children to petitioner (see, Appeal of Donohue, supra [guardian's assumption of financial support indicates complete transfer of care and control]; Appeal of S.H., 40 Ed Dept Rep ___, Decision No. 14,578; Appeal of Epps, supra). Even the decisions of the Commissioner most strongly relied upon by petitioner (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003; Appeal of Pryor, 29 id. 505, Decision No. 12,366; Appeal of McMullan, supra), involving the hardships of single parents, require that the traditional criteria for complete transfer of care, custody and control must be met. Such criteria include a consideration of who is providing financial support for the children.

I must also reject petitioner's contention that respondent violated "100.2(y) of the Commissioner's regulations by failing to permit her to provide evidence of residency, and failing to provide a hearing. Commissioner"s regulation "100.2(y) sets forth the procedures that a district must follow in determining whether a child is entitled to attend district schools. Among other things, this provision requires the board or its designee to provide the parent with an opportunity to submit information concerning the child"s right to attend school in the district before making a residency determination.

In its March 7, 2001 letter, the district advised Ms. Marbury that she had the opportunity to submit any information she wished to submit concerning the right of her children to attend district schools. Ms. Marbury then submitted the care and custody applications, but the record does not reflect that she submitted any further evidence. Affording Ms. Marbury the opportunity to submit the affidavits, and any other documentary evidence she desired to provide, constitutes compliance with the requirements of "100.2(y) (see, Appeal of a Student With a Disability, 41 Ed Dept Rep ___, Decision No. 14,613; Appeal of Rosen, 33 id. 443, Decision No. 13,106). As to petitioner's claim that the care and custody applications were vague and misleading, petitioner does not identify any information that she would have added if the wording of the applications had been different, and the information in Ms. Marbury's affidavit in support of this appeal is consistent with the information provided in the applications. Additionally, the district is not required by "100.2(y) to provide a formal hearing before making a residency determination (Appeal of Rosen, supra).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Karmin, supra; Appeal of Lokkeberg, 38 Ed Dept Rep 134, Decision No. 14,001). Based upon the record before me, I cannot find that respondent's determination is unreasonable, and the appeal must therefore be dismissed. In view of this disposition, I need not address respondent's investigation results and petitioner's challenges to the investigation.

THE APPEAL IS DISMISSED.

END OF FILE