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Decision No. 15,445

Appeal of STERLE MURRAY, on behalf of Elisabeth Keisha Desamour, from action of the Board of Education of the Pine Bush Central School District regarding residency.

 

Decision No. 15,445

 

August 21, 2006

 

Donoghue, Thomas, Auslander & Drohan LLP, Krystina E. Cho, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pine Bush Central School District (“respondent”) that Elisabeth Keisha Desamour is not a district resident.  The appeal must be dismissed.

Petitioner resides in respondent’s district and is a friend of Elisabeth’s mother who resides in Haiti.  On January 31, 2006, petitioner attempted to register Elisabeth in respondent’s district.  Although the record is not clear, it appears that petitioner provided the district with an “authorization to take charge” dated January 12, 2006 from Elisabeth’s mother granting “guardianship” to petitioner and two other individuals.  Respondent’s designee held a residency hearing on February 3, 2006 whereat petitioner presented a custodial affidavit in which she stated that she was Elisabeth’s guardian and that Elisabeth’s mother would provide food, clothing and all other necessities.  Petitioner also indicated that Elisabeth would live with her for three years, until she moved to another state to attend college or, if Elisabeth attends college in New York, she could remain with petitioner.

At the hearing, Elisabeth indicated that she was in the United States because her mother wanted her to have a better education and because of the violence and kidnappings in Haiti.  The hearing record indicates that Elisabeth’s mother sends her $300 every month and will remain involved in Elisabeth’s education.  By letter dated February 6, 2006, respondent’s designee notified petitioner that Elisabeth was not entitled to attend the schools of the district because she was not a resident.

Subsequently, petitioner submitted a second “authorization to take charge” signed by Elisabeth’s mother granting exclusive “guardianship” of Elisabeth to petitioner.  Petitioner also submitted a notarized statement dated March 6, 2006 indicating that she was Elisabeth’s custodial guardian, that she was fully responsible for Elisabeth’s affairs, that she was currently paying all of Elisabeth’s expenses and that Elisabeth would remain with her indefinitely until her 18th birthday.

Based on this information, a second residency hearing was held on March 10, 2006.  By letter of the same date, respondent’s designee again notified petitioner that Elisabeth was not entitled to attend schools in the district because she was not a resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 18, 2006.

Petitioner contends that she is Elisabeth’s legal guardian and that Elisabeth is unable to attend school in Haiti because of kidnappings and violence.  Respondent asserts that petitioner is not Elisabeth’s legal guardian and that its residency determination is neither arbitrary or capricious.

Initially, I note that petitioner’s reply is untimely.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR �275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (id.) Respondent served its answer by mail on April 25, 2006.  Thus, petitioner’s reply should have been served no later than May 9, 2006.  Petitioner served her reply on May 10, 2006.  Therefore, I have not considered the reply.

     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 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 Innocent, 44 Ed Dept Rep 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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 Nelson, 44 Ed Dept Rep 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).

Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917).

Petitioner has failed to rebut the presumption that Elisabeth’s residence is that of her mother.  The record reflects that the purported transfer of Elisabeth’s custody and control to petitioner is neither total nor permanent.  Petitioner has presented no evidence of a court order or letters of guardianship transferring permanent custody to Elisabeth to petitioner and relies entirely on the “authorizations to take charge.”  The authorizations do not effect either a total or permanent transfer of custody and control.  The record also indicates that Elisabeth’s mother sends her $300 every month to provide for food, clothing and other necessities and that she will remain involved in Elisabeth’s education.  Therefore, on the record before me, I cannot find respondent’s determination to be arbitrary, capricious or unreasonable.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Elisabeth’s behalf and to present any new information for respondent’s consideration.

 

THE APPEAL IS DISMISSED.

END OF FILE