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Decision No. 14,938

Appeal of S.Z., on behalf of F.K. and A. Z., from action of the Board of Education of the Pittsford Central School District regarding residency.

 

 

(August 26, 2003)

 

Joyce B. Berkowitz, Esq., attorney for petitioner

 

Harris Beach LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pittsford Central School District ("respondent") that her niece, F.K., is not a district resident.  The appeal of respondent"s determination concerning F.K."s residency must be sustained.  Petitioner also initially appealed respondent"s determination that her nephew, A.Z., is not a district resident.  She now concedes, however, that this portion of the appeal is moot because A.Z. has enrolled in a private school.  Accordingly, the appeal of respondent"s determination concerning A.Z."s residency must be dismissed.

F.K. will begin eleventh grade in September 2003.  She has attended respondent"s schools since kindergarten.  Petitioner alleges that she has been F.K."s guardian since birth and that F.K. resides with her in respondent"s district.  Petitioner asserts that F.K."s mother is petitioner"s sister.  She further asserts that both F.K."s mother and F.K. have resided with petitioner since F.K."s birth.  Petitioner submits a sworn affidavit from F.K."s mother stating that she resides with petitioner and that petitioner has been F.K."s guardian since birth.  Petitioner asserts that F.K."s mother suffers from medical problems which require constant supervision.  Petitioner submits certain documents, including F.K."s driver"s license and medical forms, indicating that F.K. resides with petitioner.  Petitioner also asserts that her brother-in-law, Mr. K., resides with her.  Although it is not completely clear from the record, it appears that Mr. K. is F.K."s father.

Petitioner further asserts that her brother, I.A., resides in a neighboring school district, and that petitioner"s mother, as well as other relatives, reside at I.A."s house.  On a typical school day, F.K. is driven from petitioner"s house to I.A."s house before sunrise for morning prayer with other family members.  Mr. K. subsequently drives F.K. either directly to respondent"s high school or back to petitioner"s house.  After school, F.K. goes to petitioner"s house where she does her homework.  Petitioner, F.K., and other relatives then go to I.A."s house for dinner by 5:00 " 5:30 p.m.  After dinner, I.A. tutors F.K.  Petitioner, F.K., and the other relatives residing with petitioner return to petitioner"s house after evening prayer at approximately 10 p.m. 

In March 2003, respondent hired an investigator to determine whether F.K. resides in the district.  The record does not indicate what prompted respondent to commence this investigation.  Between March 26 and May 2, 2003, the investigator conducted eleven days of surveillance of I.A."s house. On each of those days, the investigator arrived at I.A."s house after 5:18 a.m.  On ten of those days, he observed a male and F.K. exit I.A."s house at approximately 7:00 a.m. and drive away.  On eight of those days, he followed the car and observed the male drop F.K. off at respondent"s high school.

The investigator also conducted afternoon surveillance of I.A."s house on nine days.  On each of those days, F.K. arrived in a vehicle between 3:52 and 5:57 p.m. and entered I.A."s house.  The vehicle was driven by a male on some days, a female on other days, and on other days the investigator did not identify the driver.  Between the time F.K. arrived each afternoon and the time the investigator left the area, the investigator did not observe F.K. leaving the house.  The investigator left the area each day by 7:30 p.m.

By letter dated May 9, 2003, respondent"s director of pupil services informed petitioner that, as a result of the above surveillance, respondent determined that F.K. actually resides at I.A."s house outside the district, and that F.K. would be excluded from the district"s schools after the end of the school day on May 22, 2003.  This appeal ensued.  Petitioner"s request for interim relief was granted on June 11, 2003.

Petitioner asserts that F.K. resides with her and that her explanation of F.K."s visits to I.A."s house is consistent with the surveillance.  Respondent asserts that the above surveillance evidence shows that F.K. resides at I.A."s house outside of the district.  Respondent also contends that petitioner"s memorandum of law should be disregarded because it was not timely served.

I must first address a procedural issue.  Respondent contends that petitioner"s memorandum of law is untimely and should, therefore, be disregarded.  The Commissioner"s regulations require petitioner to serve a memorandum of law on a respondent within 20 days after service of the answer, but when the answer is served by mail, the date of mailing and four days subsequent thereto shall be excluded from the computation of the 20-day period (8 NYCRR "276.4[a]).  Answers must be served by personal service or by mail (8 NYCRR "275.8(b)).  Respondent"s affidavit of service reveals that respondent served the answer by mail and also purported to serve the answer by affixing it to petitioner"s door.  The Commissioner"s regulations do not authorize the latter.  Thus, only respondent"s service of the answer by mail was valid.  Accordingly, the computation of time must exclude the date of mailing and four days subsequent thereto.  Petitioner"s memorandum was therefore filed within the 20-day period and is timely.

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 E.S., 43 Ed Dept Rep __, Decision No. 14,914; Appeal of T.C., 43 id. __, Decision No. 14,910; Appeal of Hutchinson, 42 id. __, Decision No. 14,865).

     A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of E.S., supra; Appeal of T.C., supra; Appeal of Hutchinson, supra).  This presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing within the district (Appeal of E.S., supra; Appeal of T.C., supra; Appeal of Hutchinson, supra).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child"s permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child"s support and custody (Appeal of E.S., supra; Appeal of T.C., supra; Appeal of Hutchinson, supra).

     In making its determination that F.K. does not reside in respondent"s district, respondent relied exclusively on the surveillance of the investigator.  The surveillance, however, is completely consistent with petitioner"s explanation of F.K."s daily routine.  The investigator observed F.K. leaving I.A."s house on a number of occasions at approximately 7 a.m. This is consistent with petitioner"s explanation that F.K. normally travels from petitioner"s house to I.A."s house each morning before sunrise for prayer, and is then driven to home or school by Mr. K.  The investigator also reported that he observed F.K. arrive at I.A."s house in the afternoon on a number of occasions and that she had not left I.A."s house by the time the investigator stopped surveillance each evening at approximately 7 p.m.  This is consistent with petitioner"s explanation that F.K. would go to I.A."s house each afternoon, eat dinner, and then stay there until after evening prayer in the late evening before returning to petitioner"s house.  Thus, the evidence relied on by the district does not prove that F.K. resides outside the district.

     It is undisputed that petitioner resides in respondent"s district.  Moreover, petitioner has established that she is F.K."s guardian and that F.K. resides with her.  Petitioner and F.K."s mother have submitted affidavits stating that petitioner has been F.K."s guardian since F.K."s birth as a result of F.K."s mother"s medical problems.  Petitioner also avers that F.K. has always resided with her.  Respondent observes that F.K."s mother"s affidavit states that petitioner is F.K."s guardian and that F.K."s mother resides with petitioner, but does not expressly state that F.K. resides with petitioner.  Respondent asserts that a negative inference must, therefore, be drawn from F.K."s mother"s affidavit.  This argument is without merit.  A minor normally lives with his or her guardian.  Thus, it is logical to infer from F.K."s mother"s affidavit that F.K. resides with petitioner.  Even if there is ambiguity in F.K."s mother"s affidavit, petitioner"s affidavit expressly states that F.K. resides with her.  Respondent has failed to submit any evidence to the contrary.

     Respondent contends that petitioner states that F.K. eats dinner at petitioner"s house each evening, and that this is contradicted by the surveillance which shows that F.K. is normally at I.A."s house at dinner time.  Respondent misreads the petition.  As discussed above, the petition states that F.K. normally goes to petitioner"s house after school, does her homework, goes to I.A."s house for dinner with relatives including petitioner"s mother, who lives at I.A."s house, and then returns with petitioner to petitioner"s house late in the evening after evening prayer.

I find that respondent had an insufficient factual basis to determine that F.K. resides outside the district, and I therefore set aside that determination.  I further note that there is nothing in the record indicating that respondent complied with its obligation under "100.2(y) of the Commissioner"s regulations to afford the child"s parent, or person in parental relation to the child, the opportunity to submit information concerning the child"s right to attend school in the district prior to making its residency determination.  I remind respondent to be cognizant of its obligations under "100.2(y) in the future.

 

THE APPEAL WITH RESPECT TO F.K. IS SUSTAINED. THE APPEAL WITH RESPECT TO A.Z. IS DISMISSED.

 

IT IS ORDERED that respondent admit F.K. to the schools of the Pittsford Central School District without the payment of tuition.

END OF FILE