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Decision No. 16,305

Appeal of VALERIE CAPOZZI, on behalf of her daughter GIAVANNA KELLER, from action of the Board of Education of the North Syracuse Central School District regarding residency.

Decision NO. 16,305

(September 19, 2011)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Subhash Viswanathan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the North Syracuse Central School District (“respondent”) that her daughter, Giavanna, is not a district resident.  The appeal must be dismissed.

Giavanna has attended respondent’s Roxboro Road Elementary School (“Roxboro”) since the 2007-2008 school year.  At the time of Giavanna’s enrollment, petitioner indicated that she and Giavanna resided with petitioner’s mother (Giavanna’s grandmother) in a residence on Brookfield Road in Mattydale, New York, within respondent’s district.  The record indicates that, since the 2007-2008 school year, Giavanna frequently arrived late to school.  During the 2009-2010 school year, Giavanna’s second grade teacher became aware of the fact that, although she took the bus from school to the Brookfield Road residence each afternoon, petitioner generally drove her to school each day.  In March 2010, Giavanna informed her teacher that she did not live at her grandmother’s residence on Brookfield Road but instead lived near a shopping plaza that is located outside respondent’s district.  Based on this information, the district began an investigation of petitioner’s residency and learned that petitioner might be residing at a residence on Woods Avenue in Syracuse, New York, outside the district.

By letter dated April 6, 2010, respondent’s director of pupil personnel services advised petitioner that the district had reason to believe that Giavanna might no longer be residing within the district.  The letter further informed petitioner that if she disagreed with this determination, she should complete and return an affidavit of residency (“affidavit”) and submit any other information to substantiate her claim that Giavanna was a district resident.  In addition, the letter stated that Giavanna would be excluded from respondent’s schools if the district did not receive the affidavit by April 14, 2010.

Subsequently, petitioner submitted the affidavit to the district stating that she and Giavanna resided at the Brookfield Road residence and that she provided primary financial support for Giavanna.  Petitioner also submitted several documents listing Brookfield Road as her address including: her driver’s license; student loan statement; New York State automobile insurance identification card; W-2 wage and tax statement for 2009; statement for recipients of certain government payments form 1099-G for 2009; pay stubs; and a doctor’s bill.  She further submitted six unsworn letters from neighbors of the Brookfield Road residence claiming that Giavanna lives there.

The district arranged for surveillance to be conducted at the Brookfield Road and/or Woods Avenue residences on April 8, 9, 12, 14, 15 and 16, 2010.  During this period, petitioner’s vehicle was observed at the Woods Avenue residence on four mornings and petitioner was observed driving Giavanna to school from the Woods Avenue residence on two of those mornings.  On the morning of April 12, 2010, petitioner, her mother and Giavanna were observed leaving the Woods Avenue residence to go shopping.  On the morning of April 9, 2010, petitioner was observed driving from the Woods Avenue residence to the Brookfield Road residence and then driving Giavanna to school.  However, the record is unclear as to whether Giavanna was in the vehicle when petitioner left the Woods Avenue residence that morning.  On one evening, Giavanna was observed spending the night at the Brookfield Road residence, while petitioner was observed leaving that residence to spend the night at the Woods Avenue residence.  On two additional evenings, petitioner’s vehicle was observed at the Woods Avenue residence, where her last name was observed on a mailbox.  At no time during this surveillance was petitioner observed spending the night at the Brookfield Road residence.

By letter dated April 22, 2010, respondent’s superintendent notified petitioner that a determination had been made that Giavanna was not a district resident and would be excluded from its schools effective April 30, 2010.

On or about May 7, 2010, petitioner informed the superintendent that she intended to give notice to her landlord that she would be moving out of the Woods Avenue residence (“notice”) and that she planned to move back to the district within 30 days.  Subsequently, by letter dated May 7, 2010, petitioner advised the superintendent that she and Giavanna would be moving back to the Brookfield Road residence within 30 days.  Based on petitioner’s representations, by letter dated May 7, 2010, the superintendent authorized Giavanna’s continued enrollment in Roxboro for the remainder of the 2009-2010 school year, provided that petitioner submitted a copy of the notice to him by May 14, 2010.  This letter further advised petitioner that Giavanna would not be eligible for continued enrollment in Roxboro if she did not provide such notice by the prescribed date.

By letter dated August 18, 2010, the district advised petitioner of Giavanna’s third grade teacher assignment for the 2010-2011 school year.  On or about August 30, 2010, petitioner’s mother informed the district that petitioner had not moved out of the Woods Avenue residence and that petitioner’s and Giavanna’s living arrangements were the same as they were for the 2009-2010 school year.  Later that same day, the district removed Giavanna from enrollment in its schools for the 2010-2011 school year.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 20, 2010.

Petitioner claims that both she and Giavanna are residents of respondent’s district and that Giavanna has resided at the Brookfield Road residence her entire life.  Petitioner alleges that, although Giavanna has a room at the Woods Avenue residence, the bulk of Giavanna’s possessions are at the Brookfield Road residence.  Petitioner also claims that all Giavanna’s friends and activities are centered around the Brookfield Road residence.  Petitioner further asserts that she and Giavanna only stay at the Woods Avenue residence sporadically.  Petitioner maintains that she does not have a lease for the Woods Avenue residence and that she has rented this residence on a month-to-month basis for approximately a year and a half.  Additionally, in support of her appeal, petitioner has submitted copies of all of the documents that she provided to the district to substantiate her residency claim.

Respondent argues that the appeal is untimely.  Respondent further maintains that Giavanna is not a district resident and, therefore, is not entitled to attend its schools on a tuition-free basis.

I will first address several procedural issues.  On or about September 16, 2010, petitioner sent a letter to my Office of Counsel in response to respondent’s opposition to her request for interim relief, for which there is no authority under the regulations (see 8 NYCRR §275.3; Appeal of DeLouise, 49 Ed Dept Rep 384, Decision No. 16,058; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  In addition, this letter was not verified in violation of 8 NYCRR §275.5, which requires that all pleadings in an appeal to the Commissioner be verified.  Therefore, I have not considered this letter as part of the record in this appeal.

The appeal must be dismissed as untimely with respect to respondent’s April 22, 2010 residency determination.  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 Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  The instant appeal was commenced on or about September 9, 2010.  Petitioner argues that the 30-day period should run from August 30, 2010 - the date on which Giavanna was “officially ‘EXITED’” from respondent’s schools as a non-resident.  However, the record indicates that, by letter dated April 22, 2010, the superintendent informed petitioner that the district had “completed” its residency investigation and determined that Giavanna was not a district resident.  The letter also informed petitioner of her right to appeal such determination within 30 days pursuant to Education Law §310.  This letter thus constitutes the district’s final determination of residency from which petitioner now appeals.  Accordingly, the 30-day period began to run when petitioner received this letter.

In addition, while the Commissioner has the discretion to excuse a failure to commence an appeal within the time specified for good cause shown, there has been no such showing here.  Petitioner asserts that her delay in commencing the appeal should be excused because she initially intended to move back to the Brookfield Road residence.  I find petitioner’s excuse unavailing.  Accordingly, petitioner’s claim that respondent wrongly determined that her daughter is not a district resident must be dismissed as untimely.

I note that the appeal is timely to the extent petitioner challenges respondent’s action on August 30, 2010 to exclude her daughter from enrollment.  However, petitioner has not alleged or established any basis for challenging the August 30, 2010 determination.  Respondent allowed petitioner’s daughter to remain enrolled in the district in reliance upon petitioner’s representation that she and her daughter were moving out of the Woods Avenue address and would be residing in the district.  When petitioner advised respondent she was not moving, respondent excluded petitioner’s daughter as a non-resident based on its prior residency determination.  Petitioner has failed to establish that respondent’s August 30, 2010 determination was arbitrary or unreasonable and therefore has failed to establish a clear legal right to the relief requested (seeAppeal of Powell, 47 Ed Dept Rep 98, Decision No. 15,639).

Even if it were not dismissed as untimely, petitioner’s challenge to respondent’s April 22, 2010 residency determination also 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).

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).

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).

To support her claim of residency, petitioner produced copies of several documents, including her driver’s license, a W-2 form, a 1099 form, an automobile insurance identification card, pay stubs, a doctor’s bill and a student loan statement listing her address as Brookfield Road.  Petitioner has also submitted unsworn letters from neighbors of the Broookfield Road residence stating that Giavanna resides there with petitioner’s mother.  While these documents do indicate that petitioner uses her mother’s in-district address as her mailing address, they are not dispositive of petitioner’s residency, particularly in light of the district’s investigation, during which petitioner’s vehicle was observed at the Woods Avenue address on several mornings and evenings and petitioner was observed leaving the Woods Avenue residence to drive Giavanna to school on two mornings.  Moreover, none of the unsworn letters submitted by petitioner contain any indication that she resides at the Brookfield Road address.  Finally, while petitioner states that she does not have a lease for the Woods Avenue residence, she acknowledges that she pays rent there on a month-to-month basis.  Based on the record before me, I find that petitioner has failed to establish actual physical presence in the district (seeAppeal of Powell, 47 Ed Dept Rep 98, Decision No. 15,639).

Additionally, there is no evidence in the record before me that petitioner has surrendered parental control of Giavanna to her mother.  Petitioner admits that it is “pride that keeps [her] from simply turning over custody” of Giavanna to her mother and explains that “this action is unnecessary, and may prove to be burdensome if she has to explain custody to physicians or dentists.”  For example, petitioner states in her affidavit that she, along with Giavanna’s father, financially support her and that petitioner exercises control over Giavanna’s activities and behavior.  Petitioner also states that she and Giavanna’s father will be responsible for making decisions regarding Giavanna in the case of a medical or other emergency.  Thus, petitioner has failed to rebut the presumption that Giavanna’s legal residence is with her, outside 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 Giavanna is not a district resident and is not entitled to attend the district’s schools tuition-free.

In light of this disposition, I need not consider the parties’ remaining contentions.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Giavanna’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.