Decision No. 14,682

(January 29, 2002)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cleveland Hill Union Free School District ("respondent") that her son is not a district resident and, therefore, is not entitled to attend its public schools. The appeal must be dismissed.

Petitioner's son attended school in respondent's district during the 2000-01 school year. In early 2001, respondent commenced an investigation of petitioner and her son's residency, based on statements made by petitioner's son to a teacher indicating that he resided at 43 Hastings Avenue, Buffalo, outside respondent's district. The investigation included surveillance conducted from February 6 through February 23, 2001. The surveillance report indicated that on four occasions petitioner was seen leaving 43 Hastings Avenue before 6:30 a.m. and driving to her parents' home at 14 Furlong Road in respondent's district. Petitioner picked up her son at that address and drove him to elementary school in respondent's district. On four other dates during that time period a car registered to petitioner was observed at various hours of the night parked at the 43 Hastings Avenue address.

By letter dated February 26, 2001, respondent's superintendent of schools notified petitioner of his determination that her son was not a district resident and invited her to submit documentation regarding his residency. The letter further stated that, if petitioner did not submit information sufficient to establish residency in respondent's district, petitioner's son would be excluded from school, effective at the close of the school day, March 9, 2001.

In response to the letter, petitioner telephoned the superintendent and indicated that, although she lived at 43 Hastings Street, her son resided at 14 Furlong Street with his grandparents in respondent's district. Subsequently, petitioner submitted documentation that listed 14 Furlong Street as her address - contrary to her prior statements. However, respondent permitted petitioner's son to remain in attendance at its schools pending further investigation.

Respondent, thereafter, conducted additional surveillance from September 5 through September 10, 2001. The surveillance report indicates that, on three dates during that time, petitioner and her son were observed leaving 43 Hastings Avenue before 8:30 a.m. and driving to respondent's elementary school where the student was dropped off. As a result of this continued investigation, respondent's superintendent notified petitioner by letter dated September 27, 2001 that her son was not a district resident and that petitioner had an opportunity to submit documentation regarding his residency. The letter further stated that, absent sufficient information or documentation establishing residency, her son would be excluded from attending respondent's school, effective at the close of the school day, October 5, 2001.

By letter dated October 4, 2001, petitioner informed respondent that she had filed a petition in Erie County Surrogate's Court seeking to transfer guardianship of her son to his grandparent who resides at 14 Furlong Avenue in respondent's district. Petitioner's letter states, "Please be advised that I am most concerned about my child's education and I will only do what I believe is best for him." Petitioner also stated in a telephone conversation with respondent's superintendent that she owned the property at 43 Hastings Avenue and that she and her son had stayed there September 5-10, 2001 because her parents were on vacation that week.

By letter dated October 25, 2001, respondent's superintendent notified petitioner of his determination that, upon review of all the information relating to her son's residency, petitioner and her son did not reside in respondent's district. In addition, the letter indicated that it appeared that the sole purpose for the guardianship petitioner filed in Erie County Surrogate's Court was to permit petitioner's son to attend school in respondent's district. The letter stated that, based on the determination of nonresidency, petitioner's son would be excluded from school, effective at the close of the school day, November 2, 2001. This appeal ensued. As part of her appeal, petitioner requested an interim order directing respondent to admit her son to school pending a determination on the merits of this appeal. By letter dated November 30, 2001, I declined to issue such an order.

Petitioner contends that her son is a resident of respondent's district and, as such, is entitled to attend its schools. Respondent contends that its determination that petitioner and her son are not district residents is supported by the record, is not arbitrary or capricious and should not be disturbed.

At the outset, I must address a procedural matter. Under a cover letter dated December 20, 2001, subsequent to the service and filing of both the petition and answer in this appeal, petitioner submitted a number of additional affidavits. However, petitioner did not request permission to submit such additional exhibits as required by the Commissioner's regulations (8 NYCRR "276.5), nor is there any proof of service indicating that petitioner served a copy of these new affidavits upon respondent (8 NYCRR "275.8[b]). Accordingly, the additional affidavits will not be considered as part of the record before me.

Turning 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 to students whose parents or legal guardians reside within the district (Appeal of Thomas, 41 Ed Dept Rep ___, Decision No. 14,622; Appeal of Wilkinson, 41 id. ___, Decision No. 14,637; Appeal of Pierre, 40 id. __, Decision No. 14,551).

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 Wilkinson, supra; Appeal of Silvestro, 40 Ed Dept Rep ___, Decision No. 14,476; Appeal of Gentile, 39 id. 23, Decision No. 14,161). Additionally, a child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Wilkinson, supra; Appeal of Epps, 39 Ed Dept Rep 778, Decision No. 14,377). 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 Thomas, supra; Appeal of Juarez, supra; Appeal of Gorrasi, 35 Ed Dept Rep 68, Decision No. 13,467). 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).

After carefully reviewing the record presented herein, I do not find respondent's determination, that petitioner and her son are not district residents, arbitrary, capricious or unreasonable. Respondent conducted surveillance over a three-week period in February 2001 and again the following fall from September 5-10, 2001. The surveillance consistently demonstrated petitioner's physical presence at 43 Hastings Avenue outside respondent's district. Both petitioner and her son indicated at least once to respondent's staff that they resided at 43 Hastings Avenue. I have reviewed the documentation submitted by petitioner listing 14 Furlong Road as her address, including mailing labels, letters, credit card, investment and health insurance statements, automobile title information and a 1998 income tax return. However, in view of the surveillance reports and statements by petitioner and her son, I do not find the documentation sufficient to establish petitioner's residency in respondent's district. Although petitioner provides a copy of her year 2000 W-2 tax withholding form, notably absent is her year 2000 tax return forms. In addition, I also find it significant that, in contravention of her assertions that she resides at the 14 Furlong Avenue address, petitioner initiated proceedings in Erie County Surrogate's Court to transfer guardianship of her son to his grandparent, Curtis M. Boyd, who resides at 14 Furlong Avenue. I find, therefore, that respondent's determination that petitioner is not a resident of its school district is not arbitrary and capricious and is rationally based on the information in the record.

Moreover, respondent's determination that the presumption that Curtis Bishop resides with his mother has not been rebutted also must be upheld. The only evidence petitioner submits to rebut the presumption is a copy of her application before Surrogate's Court to transfer her son's guardianship to his grandparent, dated after respondent's residency determination. There is no evidence in the record that the court has ruled on her petition, and petitioner's letter to respondent's superintendent informing him of the guardianship proceeding suggests that she initiated it in response to respondent's residency inquiry. Notably absent from the record is any evidence indicating that petitioner has relinquished custody and control over her son. Thus, I find that petitioner has not rebutted the presumption that her son, Curtis, resides with petitioner outside respondent's district.

I note, however, that petitioner may reapply for Curtis's admission to respondent's schools at any time if the circumstances presented in this appeal change or she can provide additional evidence that she has conveyed complete custody and control to Curtis's grandparent.

THE APPEAL IS DISMISSED.

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