Appeal of A.F., on behalf of his son A.F.,II, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 17,151

(August 16, 2017)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Elizabeth A. Ledkovsky, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that his son (“the student”) is not a district resident.  The appeal must be dismissed.

At the time of this appeal, the student attended seventh grade at respondent’s Robert Frost Middle School.  The record indicates that prior to the circumstances that gave rise to this appeal, the student resided with his mother within respondent’s district where he has attended respondent’s schools since he entered kindergarten in September 2009.  The record indicates that petitioner and the student’s mother are separated, and that petitioner resides outside of respondent’s district. 

By an order of temporary removal dated August 19, 2016, Nassau County Family Court removed the student from the care and custody of his mother and placed the student in the custody of a relative within respondent’s district.  This temporary order makes no mention of petitioner or the status of his custodial rights.  On November 1, 2016, Nassau County Family Court issued a modified order placing the student in the custody of a different family member who also resides within respondent’s district.  However, such order also directed that the student be released to the custody of petitioner upon certain terms and conditions as specified in the order.  The record indicates that the order dated November 1, 2016 will expire on November 1, 2017.  The record further indicates that a permanency hearing surrounding the care and custody of the student was scheduled to occur on April 4, 2017.  However, the record herein does not contain any information about the outcome of such hearing.

By letter dated March 13, 2017, respondent’s district attendance teacher informed petitioner of his determination that petitioner does not reside within the district, and therefore, the student is ineligible to attend the schools of the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 14, 2017.

Petitioner asserts that the student resides in respondent’s district with a relative and that he occasionally visits with petitioner at his out-of-district address.  Petitioner asserts that, on or about August 29, 2016, the student’s mother “sought treatment for health reasons” and as a result the student began living with a relative within the boundaries of respondent’s district.  Petitioner further asserts that, on or about March 7, 2017, the student began living with a different relative within the district and that relative is supporting the student and exercises control over the student’s activities and behavior.  Petitioner seeks a determination that the student is a resident of respondent’s district and is entitled to attend the schools of the district without the payment of tuition.

Respondent contends that, despite the court orders which place the student in the custody of a family member residing within the district, the student actually resides with petitioner outside of respondent’s district.  To support this conclusion, respondent relies upon statements made by the student to respondent’s social worker that he was working to improve his academic performance in order to “‘show the court’ that living with his Dad ‘would be OK.’”  Respondent further relies upon the student’s attendance records for the 2016-2017 school year wherein petitioner contacted the school regarding the student’s absence or tardiness. 

Respondent further contends that petitioner has failed to meet his burden of proof and has failed to exhaust administrative remedies.

     The appeal must be dismissed for failure to exhaust administrative remedies.  As a prerequisite to an appeal pursuant to Education Law §310, a petitioner must exhaust administrative remedies when there is a legal mandate or applicable provision of law requiring exhaustion (see Appeal of Peppaceno, 55 Ed Dept Rep, Decision No. 16,807; Appeal of Murillo, 55 id., Decision No. 16,806; Appeal of Moultrie, 33 id. 89, Decision No. 12,987).  Section 100.2(y) of the Commissioner’s regulations provides that:

[t]he board of education or its designee shall determine whether a child is entitled to attend the schools of the district.  Any decision by a school official, other than the board or its designee, that a child is not entitled to attend the schools of the district shall include notification of the procedures to obtain review of the decision within the school district.

Respondent’s March 13, 2017 letter advised petitioner that, “[i]f you wish to dispute this issue, you may provide a letter of appeal in writing to the Deer Park School Board of Education.”  The letter further advised petitioner that such a determination may then be appealed to the Commissioner within 30 days of the board’s determination.  In light of §100.2(y), petitioner was required to avail himself of these procedures (see Appeal of Peppaceno, 55 Ed Dept Rep, Decision No. 16,807; Appeal of Murillo, 55 id., Decision No. 16,806; Appeal of Moultrie, 33 id. 89, Decision No. 12,987).  The record contains no evidence that petitioner availed himself of such an appeal to respondent prior to commencing the instant appeal.  Therefore, the appeal must be dismissed for failure to exhaust administrative remedies.

In light of the above disposition, I am constrained to dismiss the appeal.  However, I note that petitioner retains the right to reapply for admission on behalf of the student at any time and to submit any documentary evidence for respondent’s consideration, including any evidence that the student actually lives with a parent having legal custody or a legal guardian within the district, or any current court orders related to guardianship of the student.

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