Appeal of EDYSON CANGE, on behalf of his son SHAIDE, from action of the Board of Education of the Ramapo Central School District regarding residency.

Decision No. 16,532

(August 28, 2013)

Greenberg, Wanderman & Fromson, attorneys for respondent, Stephen M. Fromson, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Ramapo Central School District (“respondent”) that his son, Shaide, is not a district resident. The appeal must be sustained.

During the 2012-2013 school years, Shaide attended respondent’s high school. According to petitioner, Shaide’s mother resides in Haiti, and he is Shaide’s “sole custodial parent.” Petitioner alleges that Shaide resides with him in respondent’s district (“Ramapo address”) and intends to remain there for an unknown number of years. He asserts that he is separated from, but on “friendly” terms with his wife, Andrea Remy Cange, who resides in Spring Valley, outside respondent’s district (“Spring Valley address”).

In November 2012, a question arose as to Shaide’s residency due to his repeated tardiness to school, prompting respondent’s Assistant Superintendent for Human Resources (“assistant superintendent”) to initiate a residency investigation. As a result, respondent’s private investigator placed petitioner’s son under surveillance. According to the record, surveillance was conducted for seven days in late November and early December 2012. The surveillance revealed that Shaide was seen leaving his stepmother’s residence in Spring Valley and was driven to school in respondent’s district. He was not seen leaving petitioner’s residence within the district on any of the seven surveillance days.

In addition, when questioned by his guidance counselor on November 28, 2012, about his tardiness to school, Shaide apparently told her that he was living at the Spring Valley address because his father and stepmother had gotten back together and were living there.

Based on the surveillance and Shaide’s statement, by letter dated December 18, 2012, respondent’s superintendent advised petitioner that Shaide could no longer attend school in respondent’s district, effective December 21,2012.

On January 4, 2013, apparently at petitioner’s request, the assistant superintendent and respondent’s attorney met with petitioner and Mrs. Cange to discuss Shaide’s residency. Petitioner and Mrs. Cange insisted that Shaide was a resident of respondent’s district. Petitioner admitted that Shaide stayed with his stepmother in Spring Valley at times due to petitioner’s late work schedule, but maintained that Shaide resided with him at his apartment in the district. There is no evidence in the record of a subsequent, written residency determination pursuant to §100.2(y) of the Commissioner’s regulations. However, subsequent to the January 4, 2013 meeting, Shaide apparently remained excluded from respondent’s high school. This appeal ensued.

On January 11, 2013, petitioner attempted to commence the instant appeal by service upon an individual who was not authorized to accept service. Thereafter, on January30, 2013, service was properly effected. On February 6,2013, petitioner’s request for interim relief was granted.

Petitioner asserts that Shaide resides with him at his apartment in respondent’s district. He claims that, although Shaide stays with his stepmother in Spring Valley at times, he does not reside with her. Petitioner requests a determination that Shaide is a resident of respondent’s school district and is entitled to attend school tuition-free. He also seeks “any information that has been previously gathered in connection with the determination.”

Respondent asserts that the appeal is untimely. Respondent maintains that petitioner has not established that Shaide is a district resident, claiming that Shaide resides at the Spring Valley address outside the district. Finally, respondent contends that petitioner’s demand for information constitutes any improper request for discovery.

With respect to the issue of timeliness, 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). Respondent argues that the appeal is untimely because the petition was not properly served upon it until January 30, 2013, more than 30 days after receipt of the superintendent’s December 18, 2012 letter which advised petitioner that his son could no longer attend school in the district beyond December 21, 2012.

Were the 30 day time period to commence from the superintendent’s December 18, 2012 letter, the appeal would be untimely, as the petition was not properly served upon respondent within 30 days thereafter. Nonetheless, the Commissioner has previously excused delays in residency cases where, inter alia, the facts suggest residency in the district, the delay is de minimus, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy(Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288;Appeal of Faucett, 38 id. 117, Decision No. 13,996). Those factors are present here. Accordingly, I will not dismiss the appeal as untimely.

Moreover, §100.2(y) of the Commissioner’s regulations requires that, upon an initial determination that an individual is not a district resident, such individual must be provided an opportunity to submit information concerning the child’s right to attend school in the district (8 NYCRR§100.2[y]). Respondent asserts that its superintendent’s December 18, 2012 letter was its final determination of Shaide’s residency, from which the 30-day time period should run. There is no evidence that the superintendent provided petitioner with an opportunity to submit information regarding his residence - in compliance with §100.2(y) – prior to making that determination. Indeed, both parties agree that it was at petitioner’s request for an explanation of the basis of the December 2012 decision that a meeting took place with petitioner and his wife on January 4, 2013, to discuss Shaide’s residence. The appeal was commenced on January 30, 2013. Given respondent’s failure to fully comply with the procedural requirements of§100.2(y) of the Commissioner’s regulations, I further decline to dismiss petitioner’s appeal as untimely.

Turning to 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 §3202is 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).

Moreover, while a stepparent may meet the statutory definition of “custodian” under Education Law §3212(1),which fixes responsibility of certain individuals to ensure compliance of minors with the compulsory attendance law, §3212 does not govern residency determinations under Education Law §3202 (Appeal of L.P., 43 Ed Dept Rep 12,Decision No. 14,901). Nor is there any indication in the record before me that Mrs. Cange is an adoptive stepparent; therefore, she is neither the parent nor person in parental relation to Shaide, as required by 8 NYCRR §100.2(y)(Appeal of Ravix, 36 Ed Dept Rep 89, Decision No. 13,667).Accordingly, Shaide’s residence is presumed to be that of petitioner, Shaide’s father.

Here, respondent acknowledges that during the 20122013 school year, petitioner lived in its district. Petitioner submitted a copy of a lease renewal of his apartment at the Ramapo address; a New York State driver’s license; a Notice of Default from the landlord of petitioner’s Ramapo address; board of elections correspondence; and utility bills. Although respondent speculates that petitioner “might” have re-located to Spring Valley, it based its residency determination solely upon surveillance of Shaide at petitioner’s wife’s Spring Valley address. Respondent made no determination that petitioner, in fact, resides outside of the district. Consequently, Shaide is presumed to reside with petitionerin respondent’s district.

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 Rep490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773).

For the purpose of this residency determination, Shaide’s residence is presumed to be that of his father in the district, and respondent has failed to rebut that presumption (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). I find no evidence in the record before me that petitioner permanently relinquished custody and control to Shaide’s stepmother, nor does respondent even make such an assertion. Petitioner submitted a statement1 by Shaide’s stepmother, in which she indicates that Shaide does not reside with her even though she will occasionally drop him off to school.

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 Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Respondent based its residency determination upon seven days of surveillance only on the student and not on petitioner. Just as a showing of a child’s physical presence in a school district, standing alone and without regard to the retention of parental control, is not sufficient to rebut the presumption that a child resides with their parent (Caitlin v. Sobol, 77 NY2d 552, 561),respondent’s surveillance evidence showing Shaide’s physical presence outside the district does not rebut the presumption that he resides with petitioner. Respondent’s residency determination included no surveillance that would tend to contradict petitioner’s assertions that he resides in respondent’s district at the Ramapo address, which is critical to his son’s residency determination. Significantly, respondent’s own answer and supporting papers indicate that, while respondent has determined that Shaide is not a resident of the school district, respondent is unaware whether petitioner is a resident. Indeed, respondent’s answer states that “[p]etitioner himself may no longer be a resident of the School District” and that “the unrefuted evidence is that the student lives in Spring Valley, outside of Ramapo Central, and that Petitioner might do so as well” (emphasis added).

I note that the statement is actually a photocopied signature page containing an original signature of a notary public, which indicates that the document was not signed before a notary public, and is thus unsworn.

Therefore, absent a determination that petitioner, Shaide’s father, is not a district resident, and in view of the unrebutted presumption that Shaide resides with his father, I find that respondent’s residency determination is unsupported by the record and must be set aside.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit Shaide to school in the Ramapo Central School District without the payment of tuition.

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