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Decision No. 16,141

Appeal of M.G., on behalf of her nephew H.G., JR., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 16,141

(August 26, 2010)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq. of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her nephew, H.G., Jr. (“H.G.”), is not a district resident.  The appeal must be dismissed.

H.G. has attended school in respondent’s district since September 2009, when his father and grandmother registered him listing an address in Elmont (“Elmont address”), within respondent’s school district.  On or about December 2, 2009, the superintendent’s assistant notified H.G.’s father that his son was not entitled to attend respondent’s schools based on H.G.’s “actual residence elsewhere”.  H.G.’s father appealed and, on January 13, 2010, respondent’s designee conducted a residency appeal review.  Prior to receiving a decision in the administrative review, by petition dated January 25, 2010, petitioner filed for guardianship with the Nassau County Family Court.  By letter dated February 5, 2010, the administrative review officer issued a decision, concluding that H.G. is not entitled to attend respondent’s schools because his actual residence is elsewhere.  This appeal ensued and petitioner’s request for interim relief was granted on March 17, 2010.

Petitioner alleges that H.G. is entitled to attend respondent's schools because he is a resident of the district.  Petitioner claims that H.G. lives with her in the district and that she provides him with food, shelter and clothing.  Finally, petitioner asserts that H.G.’s mother is deceased and his father has relinquished control over H.G. to her.

Respondent contends that it properly determined that H.G. is not a district resident.  Respondent maintains that H.G. and his father live outside the district and that there has been no transfer of custody and control of H.G. to petitioner.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

Petitioner has failed to demonstrate that H.G. is a resident of the district.  At the residency hearing, testimony about H.G.’s residence was contradictory and inconsistent.  Petitioner contends that H.G. resides with her at the Elmont address.   However, H.G.’s grandmother testified that H.G. spends approximately three nights during the school week at his grandfather’s apartment in Queens (“Queens address”).  Despite testifying that he too lives at the Elmont address, H.G.’s father stated that he considers the Queens address to be his own.    

Respondent, on the other hand, presents consistent evidence of H.G.’s presence outside the district.  The district conducted nine surveillances from September 2009 through January 2010 and on none of those occasions was H.G. observed leaving the Elmont address.  Petitioner failed to provide any explanation for these observations.  In addition, at least five surveillances were conducted at the Queens address from October 2009 through January 2010.  On at least four of these days, H.G. was seen leaving in the morning with his grandfather.  Moreover, on three dates district staff went to the Elmont address to meet H.G.’s parent, but no one was home.  Thus, on the record before me, I find that petitioner has failed to establish that he was a resident of the district.

Petitioner has also failed to provide sufficient evidence establishing that there had been a total transfer of custody and control of H.G. to her.  Although petitioner asserts that she provides financial support for H.G., his father testified that he is providing 20% and H.G.’s grandmother is providing 80% financial support.  He also stated that the grandmother has access to his bank account and “whatever she needs, she grabs”.  Petitioner has submitted no further evidence to support her claim that she exercises financial or other control over H.G.

Moreover, while the record reveals that petitioner initiated formal guardianship proceedings in Family Court, respondent submitted an affidavit from the district attendance supervisor, indicating that she appeared in Family Court on April 6, 2010.  She avers that the judge stated that she would not be issuing letters of guardianship to anyone residing at the Elmont address for H.G.  Petitioner has not presented any evidence to refute this statement.

On this record, I find that petitioner has failed to establish that H.G. is a district resident and I cannot find respondent’s determination to be arbitrary or capricious. 

While the appeal must be dismissed, I note that petitioner may reapply to the district for admission on the student’s behalf at any time and may present for respondent’s consideration any new information bearing on the question of residence – including any court order obtained from the Family Court. 

THE APPEAL IS DISMISSED.

END OF FILE.