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Decision No. 15,599

Appeal of RONALD C. PROCTOR, SR., on behalf of his daughter SABRINA, from action of the Board of Education of the Cobleskill-Richmondville Central School District regarding residency.

Decision No. 15,599

(June 28, 2007)

Parshall & West, attorneys for respondent, Michael A. West, Esq., of counsel

AHEARN, Acting Commissioner.-Petitioner appeals the decision of the Board of Education of the Cobleskill-Richmondville Central School District (“respondent”) that his daughter, Sabrina, is not a district resident entitled to attend its schools tuition-free.  The appeal must be dismissed.

Petitioner resides within the Cherry Valley-Springfield Central School District (“Cherry Valley”).  Since September 1, 2006, Sabrina has lived with Debra Karper within respondent’s school district.
On September 8, 2006, Sabrina and her parents signed respondent’s residency questionnaire.  On this form, petitioner indicated that Sabrina lived with her parents until August 31, 2006.  While petitioner stated that Sabrina did not receive financial or other support from her parents, he acknowledged that Sabrina was identified as a dependent on her parents’ state and federal tax returns.  Petitioner also answered in the affirmative when asked whether Sabrina was claiming residency for the sole purpose of attending respondent’s schools.

By letter dated September 15, 2006, respondent’s director of pupil personnel services informed petitioner that Sabrina was not a resident entitled to attend respondent’s schools tuition-free.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 2, 2006.

Petitioner claims that Sabrina is a resident of respondent’s district.  Respondent argues that the appeal must be dismissed as untimely and that Sabrina is not a district resident entitled to attend its schools tuition-free.

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 any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Petitioner was notified of respondent’s residency determination by letter dated September 15, 2006.  However, the appeal was not served on respondent until October 25, 2006, more than 30 days after the date of the letter.  Petitioner explained that his appeal was late because he works long hours and had to attend meetings.  Petitioner’s excuses do not constitute “good cause shown” and do not provide a basis to excuse his lateness in filing this appeal.  Consequently, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  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).

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).

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).

Petitioner has not met his burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he seeks relief.  Petitioner explains that Sabrina lives with Ms. Karper, rather than with her parents, because she wants to be with her friends and was unhappy and depressed when she attended school in Cherry Valley.  Petitioner alleges that he and his wife gave Ms. Karper “verbal/notarized written guardianship” of Sabrina and that he has surrendered parental control to Ms. Karper, who provides Sabrina with food, shelter and clothing and exercises control over her activities and behavior.  However, petitioner’s allegations are unsubstantiated by any supporting evidence.  Furthermore, on respondent’s residency questionnaire, petitioner’s explanation of how Sabrina came to reside with Ms. Karper was unclear and his response to whether Sabrina was claiming residency for the sole purpose of attending respondent’s schools was “Yes.”

Based on the record before me, I find that petitioner has failed to rebut the presumption that Sabrina’s permanent residence is with her parents outside of respondent’s district.  I cannot conclude, therefore, that respondent acted arbitrarily or capriciously in determining that Sabrina is not a district resident.

In light of this disposition, I need not address the parties’ remaining contentions or requests.

THE APPEAL IS DISMISSED.

END OF FILE