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Decision No. 16,283

Appeal of STUDENTS SUSPECTED OF HAVING A DISABILITY, by their parent, from action of the Board of Education of the Elwood Union Free School District regarding residency.

Decision No. 16,283

(August 17, 2011)

Ingerman Smith, L.L.P., attorneys for respondents, Susan E. Fine, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Elwood Union Free School District (“respondent”) that her sons are not district residents.  The appeal must be dismissed.

In September 2009, petitioner’s mother, A.K., enrolled petitioner’s oldest son (“the student”) in respondent’s schools, submitting an affidavit that her grandson was in her care and custody.  A.K. also submitted documentation that she resides at an address in East Northport within the district (“East Northport address”), including her “affidavit of legal residence” and a landlord’s affidavit.  These affidavits listed all of the individuals residing at the East Northport address but did not include petitioner as a resident.  Based on A.K.’s representation that she had care and custody of the student, respondent enrolled him in the district.

In November 2010, the student was referred to respondent’s committee on special education for an evaluation.  On January 14, 2011, petitioner signed a consent for his evaluation and, on the same day, referred her younger son for evaluation by the committee on preschool special education.  As part of the student’s evaluation, a social history interview was conducted with A.K. who stated that she consults petitioner when making educational decisions concerning the student.  She also stated that petitioner resides in Staten Island with her husband of four years and her third child.  Based on this information, as well as the fact that petitioner signed the consent and referral for her sons’ evaluations, respondent determined that petitioner had not relinquished custody and control of the children to A.K.  Additionally, since A.K. stated that petitioner resides in Staten Island, respondent determined that petitioner was not a district resident and, therefore, her children were not entitled to attend respondent’s schools.

Respondent’s assistant superintendent for business (“assistant superintendent”) notified petitioner of the decision by letter dated April 7, 2011.  Although the letter did not specifically inform petitioner of the opportunity to submit information regarding residency, the assistant superintendent met with petitioner on April 12, 2011.  Respondent asserts that, during this meeting, petitioner admitted that she is primarily responsible for making her children’s educational decisions, not her mother.  Additionally, respondent asserts that petitioner admitted that she resides in Staten Island with her boyfriend and her third child but that she travels to the East Northport address regularly to visit her other two children.  After this meeting, respondent maintained its position that petitioner’s sons were not district residents and would be excluded from respondent’s schools, effective April 26, 2011.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 6, 2011.

Petitioner alleges that she has resided at the East Northport address for two years and, therefore, is a district resident whose children are entitled to attend respondent’s schools.  Respondent contends that petitioner is not a district resident and has not relinquished custody and control of her children to her mother.  Respondent maintains that, consequently, its determination that petitioner’s children are not entitled to attend school in the district is not arbitrary or capricious.

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).

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).

Although the student was enrolled in September 2009 based on A.K.’s representation that she had custody and control, petitioner states in her petition that she has not surrendered parental control over her children.  Additionally, during the April 12, 2011 meeting with the assistant superintendent, petitioner indicated that she was primarily responsible for making educational decisions for her children.  This was also stated by petitioner’s mother during the student’s social history interview.  Moreover, petitioner, rather that A.K., signed the consent and referral for her sons’ evaluations.  Based on the record before me, I find that petitioner has not relinquished custody and control of her children to A.K., nor does it appear that she intended to do so.

Further, petitioner has not established that she resides in the district.  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 submits with her petition a notarized letter, dated April 18, 2011, from the landlord of the East Northport address stating that petitioner, the student and her younger son have resided at the East Northport address since August 9, 2009.  However, the affidavit inexplicably identifies petitioner and both of her children as “the children of tenant [A.K.].”  Moreover, the letter directly conflicts with affidavits previously submitted to respondent by the same landlord, dated September 10, 2009 and September 13, 2010.[1]  Those affidavits do not list petitioner as a resident of the East Northport address.

Petitioner also submits Section 8 housing documents that list petitioner as a family member who may reside at the East Northport address.  Although the Section 8 housing documentation establishes that petitioner may legally reside at the East Northport address if she chooses, it does not constitute evidence that petitioner actually resides there.  According to an affidavit by respondent’s assistant superintendent, during the April 12, 2011 meeting, petitioner admitted that she traveled regularly between Staten Island and the East Northport address.  Further, during the social history interview, A.K. stated that petitioner lives in Staten Island and provided the address there.  A.K. also stated that the student had a difficult time adjusting to the separation from his mother, belying a claim that petitioner resided at the East Northport address.  Also, the household member information reported by A.K. as part of the student’s social history did not list petitioner.  Finally, I note that petitioner has not submitted any statement or affidavit from her mother, A.K., supporting her residency claim.

Although respondent’s evidence is minimal, petitioner has not established her physical presence and intent to reside at the East Northport address and further admits that she has not relinquished custody and control of her children to her mother.  Accordingly, on this record I cannot conclude that respondent’s determination is unreasonable, arbitrary or capricious.

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1] In September 2010, two other children, whose residency is not at issue in this appeal, were enrolled in the district from the East Northport address.  At that time, supporting affidavits, including a landlord’s affidavit, were filed with respondent.  Each affidavit listed all individuals residing at the East Northport address but did not include petitioner as a resident.