Appeal of JAMES HAZELTINE, on behalf of ANTOINE PORTER, from action of the Board of Education of the Whitesboro Central School District regarding residency.

Decision No. 15,387

(March 21, 2006)

Ferrara, Fiorenza, Larison, Barrett & Reitz, P.C., attorneys for respondent, Henry F. Sobota, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Whitesboro Central School District ("respondent"), that his nephew, Antoine Porter, is not a resident of the district and is not entitled to attend its schools tuition-free. The appeal must be dismissed.

At the time this appeal was commenced, Antoine Porter was 16 years old, and had attended district schools since 1994. Prior to January 2005, he lived in the district with his mother, Sandra Hazeltine (petitioner's sister), and his father. In January 2005, or sometime prior thereto, the apartment building where Antoine lived was sold. The family was required to leave the building, and Antoine's mother moved to Kellogg Avenue, in the city of Utica, outside the district. At some point, Antoine's father left Antoine and his mother. There is some dispute as to whether Antoine moved to Kellogg Avenue with his mother, or moved to petitioner's home within the district.

In January 2005, respondent became aware that Antoine's mother had moved out of the district, and the superintendent directed that Antoine be removed from Whitesboro High School. After an attempted appeal, Antoine's mother met with respondent, explained her circumstances, and reached an agreement with respondent that Antoine would be allowed to stay at the high school through the end of the summer while she looked for housing within the district.

Respondent's superintendent, by letter dated August 24, 2005, again challenged Antoine's right to attend district schools, and scheduled a meeting for August 30 with Antoine's mother. According to the superintendent, at that meeting Antoine's mother admitted that Antoine had been living with her outside the district. She further stated that she had a lease at the property in Utica where she lived, and did not intend to move back into the district until her lease expired in January 2006. Antoine's mother also stated that on August 29 Antoine had moved to petitioner's home in the district, and produced a handwritten custody agreement dated August 24, 2005, and notarized on August 29, 2005. The document purports to transfer full custody of Antoine to petitioner and states among other things that "as of right now this is a permanent situation." Antoine's mother further stated that she continued to carry health insurance on him. Petitioner did not attend this meeting, nor did Antoine.

The superintendent issued a letter on August 31, 2005, which was hand delivered to Antoine's mother's residence on September 1, 2005, by a district courier. The superintendent found that the purported custody transfer appeared to be temporary, that the primary purpose and intent of the arrangement was to allow Antoine to attend Whitesboro schools, and that Antoine's mother continued to provide health insurance. As a result, he found that Antoine's legal residence remained with his mother outside the district.

On September 8, 2005, petitioner attempted to commence this appeal by having two papers delivered to the district clerk. One paper was a notice of petition which complied with �275.11(a) of the Commissioner's regulations, but did not contain the language required by �276.1(b) for a stay application. The other paper, in the format of a petition, consisted of only paragraphs numbered 1 through 7, and a paragraph 9, which did not set forth any claim, but only background facts. The paper did not make any claim for relief, and was not verified.

When these papers were filed with my Office of Counsel, they were returned to petitioner on September 27, 2005, by the office's Appeals Coordinator. Petitioner was advised that the papers were defective because they contained no verification; pages were missing, i.e. nothing followed paragraph 10 and there was no demand for relief; they were not accompanied by an affidavit of service; and the notice of petition did not contain the language required by �276.1(b) regarding a stay. Petitioner was given two weeks to correct these deficiencies.

On September 29, 2005, presumably in response to the Appeals Coordinator's letter, petitioner again had papers served on respondent. However, according to the affidavits of both the district clerk and the superintendent, the papers served were copies of the same two papers that had been originally served on September 8, consisting only of a notice of petition and the first page of a petition. Petitioner has not submitted a reply nor an affidavit of his process server to contradict these affidavits. Petitioner's request for interim relief was denied on October 18, 2005.

Petitioner contends that Antoine's mother has transferred custody of Antoine to him, and that Antoine should be deemed a resident of the district. Respondent contends that the custody transfer is incomplete and ineffective, and was intended only to allow Antoine to attend district schools. Respondent also argues that the petition fails to state a claim, fails to demand relief, is unverified and untimely.

The appeal must be dismissed on procedural grounds. Section 275.10 of the Commissioner's regulations provides:

The petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

Section 275.5 of the Commissioner's regulations further requires that all pleadings shall be verified.

Here, the only "petition" that has been served on respondent is a single page containing paragraphs number 1 through 7, and a paragraph 9, which contained only background information. This "petition" does not comply with �275.10, because it does not set forth a claim showing that petitioner is entitled to relief, and does not contain a demand for relief. It further does not comply with �275.5 because it is not verified. Dismissal is therefore required (Appeal of a Student Suspected of Having a Disability, 37 Ed Dept Rep 303, Decision No. 13,863).

Even if I were not dismissing this matter on procedural grounds, I would dismiss it on 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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930; Appeal of L.P., 43 id. 12, Decision No. 14,901). 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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L.H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Nelson, 44 id. 20, Decision No. 15,082). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

The record before me indicates that the purported transfer of custody that was acknowledged on August 29, 2005, one day before Antoine's mother met with the superintendent, was neither a complete renunciation of financial support or custody, nor a permanent arrangement. Antoine's mother indicated that she would not attempt to return to the district until her Utica lease expired in January 2006, and it is clear that the purpose of the arrangement was to allow Antoine to take advantage of district schools.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

I find that respondent's residency determination was neither arbitrary nor capricious, but was consistent with the evidence presented. Accordingly, I will not set it aside.

In light of this disposition, I need not address respondent's remaining contentions.

THE APPEAL IS DISMISSED.

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