Appeal of JEWELL MCNEIL, on behalf of her daughter TONDELLIA, from action of the Board of Education of the North Syracuse Central School District regarding residency.

Decision No. 17,157

(August 22, 2017)

Bond, Schoeneck & King, PLLC, attorneys for respondent, John A. Miller, Esq., of counsel.

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

The record reflects that, for a period of time petitioner and Tondellia’s father were district residents and Tondellia was registered in the district’s schools.  At some point, petitioner and Tondellia’s father left their in-district residence and on or about November 1, 2016, Tondellia moved in with her brother who is a district resident.

On April 20, 2017, the district’s Executive Director for Data/Accountability, Social Studies and Music (“director”) was contacted by the district’s Student Registrar (“registrar”) who informed her about a conversation she had with petitioner several weeks earlier, during which petitioner informed the registrar that Tondellia had moved in with her brother and was using his address for “school purposes.”  At that time, the registrar informed petitioner that Tondellia’s brother’s in-district address could not be used for residency purposes unless her brother was serving as Tondellia’s legal guardian, whereupon petitioner provided conflicting information about where Tondellia was actually living. Petitioner was then asked for proof of Tondellia’s residency, whereupon petitioner indicated that she would provide such proof the following day.  Several weeks passed and no proof was provided.

On April 21, 2017, the director spoke to petitioner and informed her that she could not take advantage of district schools by having Tondellia live with her brother within the district.

On April 24, 2017, petitioner came to the district office and completed a Residency Affidavit.

In the Residency Affidavit, petitioner confirmed the information that she had previously provided to the registrar and director that Tondellia was no longer living at the in-district address which Tondellia previously shared with petitioner, but instead, is now living with her brother within the district.  Petitioner also indicated in the Residency Affidavit that she is responsible for the “full financial support” of Tondellia, declining to apportion any percentage of this financial responsibility to any other person.  Petitioner further indicated in the Residency Affidavit that “[i]n case of medical or other emergency,” petitioner, Tondellia’s father and brother would be responsible for making decisions affecting Tondellia.

Based on the foregoing information, the director determined that petitioner and Tondellia’s father had not completely relinquished parental custody and control over Tondellia to Tondellia’s brother.  Additionally, based on her own conversation with petitioner on April 21, 2017, and the information that petitioner provided to the registrar, the director determined that when petitioner and Tondellia’s father relocated from their home within the district to a home located outside the district, they moved Tondellia into her brother’s home within the district for the purpose of enabling Tondellia to continue attending district schools.

By letter dated April 24, 2017, the director informed petitioner and her husband of her determination that Tondellia is not a district resident and that after the end of the school day on May 8, 2017, Tondellia would be excluded from further attendance in the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 12, 2017.

Petitioner admits that she and Tondellia’s father reside outside respondent’s district; however, she alleges that Tondellia resides with her brother within the district during the week and that Tondellia visits her home on weekends.  Petitioner maintains that she and Tondellia’s father have surrendered parental control to Tondellia’s brother.  In support of her allegations, petitioner has offered an Onondaga County Family Court Mediation Program “Memorandum of Understanding” dated May 1, 2017, among, herself, Tondellia’s father and brother.  Though executed in the context of a custody visitation proceeding in Family Court, there is no evidence in the record that the Memorandum of Agreement has been entered as an Order of Family Court.

Respondent asserts that the appeal must be dismissed for improper service and failure to provide proper notice in the notice of petition.  Respondent also contends that the petition was not properly verified.

Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501). 

Respondent asserts that the appeal must be dismissed because the petition was not verified.  However, my Office of Counsel received a completed affidavit of verification[1] from petitioner.  Therefore, I decline to dismiss the petition for improper verification (Appeal of B.L., 57 Ed Dept Rep, Decision No. 17,130; Appeal of K.M. and T.M., 56 id., Decision No. 17,095).

Respondent also contends that the appeal must be dismissed because the notice of petition does not comply with 8 NYCRR §275.11(a).  However, the notice of petition filed with my Office of Counsel complies with 8 NYCRR §275.11(a) and respondent has not established that the notice of petition served upon it differs from that filed with my Office of Counsel.  Thus, I decline to dismiss for failure to provide notice in accordance with 8 NYCRR §275.11(a) (see e.g. Appeal of J.F. and D.F., 45 Ed Dept Rep 241, Decision No. 15,310).

Nevertheless, the appeal must be dismissed because petitioner herself served the district clerk with the petition.  Section 275.8 of the Commissioner’s Regulations requires that a non-party over the age of 18 serve all pleadings.  Petitioner has submitted an incomplete affidavit of service signed by a person not a party to this appeal that does not indicate upon whom personal service was allegedly made.  Attempts by my Office of Counsel to obtain a completed affidavit have been unavailing.  Respondent has submitted an affidavit from the district clerk attesting that petitioner was the person who served her with the petition.  Petitioner submits no reply to respondent’s allegations.   Therefore, on this record, I am constrained to conclude that the petition and notice of petition were not properly served and the appeal must be dismissed (see, e.g. Appeal of A.F., 56 Ed Dept Rep, Decision No. 17,030).

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

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her daughter’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration, including any evidence that the May 1, 2017 Memorandum of Understanding has been entered in Family Court as a court-ordered stipulation.

 THE APPEAL IS DISMISSED.

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