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Decision No. 16,203

Appeal of TERISA HUDSON, on behalf of her daughter APPREONNA SULLIVAN, from action of the Board of Education of the Jamesville-Dewitt Central School District regarding residency.

Decision No. 16,203

(February 24, 2011)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Jamesville-Dewitt Central School District (“respondent”) that her daughter, Appreonna, is not a district resident.  The appeal must be dismissed.

The district’s superintendent avers that in March 2010 she became aware of questions regarding Appreonna’s residency.  Accordingly, by letter dated April 1, 2010, she requested that petitioner provide information verifying her residency within the district.  After receiving no response, the superintendent sent petitioner a second letter.  Both letters were mailed to petitioner at an address on Rill Avenue in Syracuse, outside the district.  According to the superintendent, petitioner replied by telephone, explained that the home at Rill Avenue belonged to her parents and claimed that she leased a house from her aunt on Merman Drive, within the district.  Although petitioner stated that she would provide a copy of a lease for Merman Drive, she failed to do so and eventually submitted one piece of correspondence from a department store addressed to her there.

Thereafter, the district arranged for surveillance to be conducted, which occurred on seven dates from May 5 to June 10, 2010.  The surveillance revealed that on two mornings between 6:15 a.m. and 8:15 a.m., Appreonna was not observed at Merman Drive although she reported to school on time.  On two other mornings, Appreonna was observed being driven to the high school directly from Rill Avenue.  On a fifth morning, petitioner was observed driving Appreonna from an address on Richardson Avenue in Syracuse to the high school.  On a sixth occasion, petitioner was observed driving Appreonna from Richardson Avenue to Rill Avenue at 6:40 a.m., whereafter another individual drove Appreonna to the high school.  Finally, on the seventh occasion, petitioner was observed departing the high school at 7:20 a.m. and proceeding to Richardson Avenue.  In addition, a records check indicated that a vehicle registration in petitioner’s name listed the Richardson Avenue address.

The superintendent concluded that Appreonna was not a district resident and by letter dated June 15, 2010, informed petitioner that Appreonna was not entitled to attend the district’s schools and would be excluded as of June 24, 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 2, 2010.

Petitioner contends that Appreonna resides in the district and should be permitted to complete her senior year there.  She requests a determination that Appreonna is a district resident and is entitled to attend district schools tuition-free.

Respondent asserts that the appeal must be dismissed as untimely.  Respondent also contends that the appeal must be dismissed because petitioner admits that she resides outside the district and has failed to rebut the presumption that Appreonna resides with her outside the district.

The appeal must be dismissed as untimely.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The superintendent notified petitioner of the district’s residency determination by letter dated June 15, 2010.  Petitioner did not serve her petition until October 21, 2010, more than four months later and offers no explanation for the delay.  Accordingly, the appeal must be dismissed.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner admits in her petition that she resides outside the district on Shirley Drive in Syracuse.  Therefore, the only remaining issue is whether petitioner effected a total transfer of custody and control of Appreonna to a district resident.

Petitioner states that she has made arrangements for Appreonna to live with her cousin, Juanita Dennis, who resides on Merman Drive, in order to attend school in the district.  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).

In addition, 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 Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).

Petitioner admits that she has not surrendered parental control of Appreonna, that she sees Appreonna almost daily, continues to financially support her, provides food, shelter and clothing, and exercises control over Appreonna’s activities and behavior.  Accordingly, petitioner has failed to rebut the presumption that Appreonna’s legal residence is with her, outside the district.  Instead, it appears that the sole reason Appreonna is living with petitioner’s cousin is to take advantage of the schools of the district.

Based on the record before me, petitioner has failed to meet her burden of proof.  Accordingly, I cannot conclude that respondent acted arbitrarily or capriciously in determining that Appreonna is not a district resident and is not entitled to attend the district's schools tuition-free.

THE APPEAL IS DISMISSED.

END OF FILE.