Appeal of JAMES CRONIN, on behalf of DEVIN MURRAY, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,102

(June 20, 2017)

Ingerman Smith, L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Baldwin Union Free School District (“respondent”) that his niece (“the student”) is not a resident of the district and is, therefore, not entitled to continue to attend its schools.  The appeal must be dismissed.

Petitioner is the student’s uncle and resides within the district.  According to petitioner, the student had lived with him for four months at the time this appeal was filed, after she moved out of her parents’ home in South Carolina in July 2016.  Petitioner submits a letter from the student’s father stating that he gave “complete custodial care and control” of the student to petitioner.  This letter was notarized on September 21, 2016. 

On September 6, 2016, petitioner completed a registration questionnaire, stating that he was the legal guardian of the student and that he and the student resided at his home within the district.  Petitioner supplied evidence of his alleged custodianship of the student to respondent, including custodial and parental affidavits.

On September 9, 2016, respondent’s director of pupil services (“director”) and its registrar spoke with petitioner about his alleged guardianship of the student.  According to the registrar, petitioner indicated that the student “decided that she wanted to stay [with petitioner] and attend school during the school year.”  In a letter to petitioner dated September 9, 2016, the director informed petitioner of his determination that the student was ineligible to enroll in respondent’s schools because she had moved in with petitioner for educational purposes only, and because her parents had not relinquished full care, custody and control of the student to petitioner. 

In a letter dated September 23, 2016, petitioner submitted additional allegations and evidence in support of his claim that the student resided in the district.  Specifically, petitioner contended that the transfer of custody was temporary only because the student was turning 18.  Petitioner also stated that he had placed “undue emphasis” on the “educational reasons” for the transfer of custody, and that “the reasons [why the student lived with him] [we]re not limited to educational purposes and the desire for [the student] to attend schools in ‘Baldwin’.”  The district reviewed the additional submissions and, by letter dated September 29, 2016, determined the student was ineligible to enroll in the respondent’s schools because “registration would be for educational purposed only.”  This appeal ensued.  Petitioner’s request for interim relief was denied on November 18, 2016.

Petitioner asserts that the student intends to reside with him within the district “permanently and indefinitely,” having moved out of her parents’ residence in South Carolina due to “a myriad of concerns for her emotional wellbeing.”  Petitioner also claims that the student has spoken to her parents only a few times since leaving South Carolina and has not had any physical contact with them since July 2016. 

Respondent contends that the petition must be dismissed as untimely.  Respondent also argues that the petition must be dismissed because petitioner failed to serve the notice of petition and failed to properly verify the petition.  Respondent contends that petitioner has failed to meet his burden of establishing that there has been a permanent and complete transfer of custody and control of the student from her parents to petitioner, or that the transfer was for reasons other than to take advantage of the district’s schools. 

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).  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).

By letter dated September 29, 2016, after consideration of additional evidence provided by petitioner, respondent’s director determined that the student was not eligible to enroll in the district’s schools.  The record does not reflect when petitioner received this determination.  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).  Therefore, the petition needed to be served by November 3, 2016.

The petition in this case was initially filed with my Office of Counsel on October 28, 2016, and was returned to petitioner on October 31, 2016 due to several procedural deficiencies; namely, for lack of the notice required by 8 NYCRR §§275.11 and 276.1; lack of an affidavit showing personal service upon respondent; and because it was not verified.  Thereafter, petitioner submitted an affidavit of service showing that the petition was served on the district on November 9, 2016.  No good cause for this delay was set forth in the petition, nor did petitioner serve a reply addressing this issue.[1]  Therefore, the petition must be dismissed as untimely. 

Although delays in residency cases have been excused where, inter alia, the facts suggest residency in the district, the delay is de minimus, and requiring the student to re-apply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of Manfredo, 56 Ed Dept Rep, Decision No. 16,943; Appeal of Jean-Louis, 49 id. 400, Decision No. 16,062; Appeal of Faucett, 38 id. 117, Decision No. 13,996), those factors are not present here (see Appeal of Kowalewski, 56 Ed Dept Rep, Decision No. 17, 013).  Moreover, I note that petitioner failed to submit a reply and, therefore, did not respond to respondent’s affirmative defense that the appeal is untimely.  Accordingly, I find the appeal is untimely, warranting dismissal (see id.).

The petition must also be dismissed due to petitioner’s failure to serve a notice of petition on respondent.  The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11[a]; Appeal of Prusak, 54 Ed Dept Rep, Decision No. 16,659; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  A petition that does not contain the language required by §275.11 is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Prusak, 54 Ed Dept Rep, Decision No. 16,659; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  The petition initially filed with my Office of Counsel on October 28, 2016 did not contain a notice of petition, and my Office of Counsel notified petitioner of this error when it returned the petition.  Despite this, petitioner did not serve a notice of petition on respondent and submits no reply or other evidence regarding such lack of notice.  The failure to serve a notice of petition upon respondent, therefore, further warrants dismissal of the petition.[2]

Although the petition must be dismissed for the procedural grounds discussed above, respondent’s decision to exclude the student as a non-resident of the district is supported by the record.  Education Law §3202(1) provides, in pertinent part, as follows:

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).  Custody may be legally transferred from a parent or guardian to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction. 

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). 

In this case, the district afforded petitioner ample opportunity to submit proof that he is the student’s legal guardian and that the student meets the residency requirements set forth above.  However, the evidence submitted by petitioner to the district and on appeal shows that the student moved in with petitioner solely to take advantage of the district’s schools.  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).  In September 2016, petitioner submitted a custodial affidavit, which stated that the student intended to reside with petitioner for one year to “attend school” and “finish senior year in N[ew] Y[ork].”  The custodial affidavit further asserted that the student was living with petitioner because she was “not happy with [the] school system” in South Carolina, and that she was “looking for [a] better education.”  Petitioner also submitted a parental affidavit to the district, which stated that the student was moving to New York to live with petitioner because she was “not happy with the school” in South Carolina and that she would be living with petitioner for one year.  Although petitioner subsequently claimed in his September 22, 2016 letter that he “inadvertently gave undue emphasis to the educational reasons” for the purported transfer of custody in his initial submission, I do not find this after-the-fact explanation persuasive.  Petitioner offered this explanation only after the district determined that the student resided with petitioner solely for educational purposes, and the record as a whole supports a finding that the student resided with petitioner solely to take advantage of respondent’s schools.  Based on this record, petitioner has not met his burden of proof that the district’s decision to exclude the student was arbitrary and capricious. 

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

THE APPEAL IS DISMISSED.

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