Appeal of JUSTIN and TARA GIBB, on behalf of their daughter ELLIE, from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.

Decision No. 17,949

(December 21, 2020)

Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel

ROSA, Interim Commissioner.--Petitioners challenge the determination of the Board of Education of the Mamaroneck Union Free School District (“respondent”) that their daughter, Ellie (“the student”), is not a district resident.  The appeal must be dismissed.

On or about May 23, 2019, petitioners submitted an electronic request to enroll the student in respondent’s district.  This request indicated that the student currently attended school in St. Paul, Minnesota and would relocate to respondent’s district in August 2019 to live with a “guardian.”  Respondent explains that electronic registration is merely the “first step” of its registration process and, thus, it awaited further submissions from petitioners.

In an email to respondent dated June 21, 2019, Ms. Gibb attached a parent affidavit indicating that she sought to effect a “[t]emporary” transfer of physical custody to two individuals who reside in respondent’s district (the “custodians”) so that the student could “finish [her] junior & senior years of high school in NY.”  Petitioners also submitted a letter and an affidavit from the custodians that provided similar descriptions of the proposed arrangement.  In June and July 2019, Ms. Gibb corresponded with two district employees by email concerning the registration process.

In a letter to petitioners dated July 30, 2019, respondent’s superintendent indicated that the district could not enroll petitioners’ daughter.  The superintendent reasoned that petitioners sought to effect only a “temporary” transfer of custody and control to the custodians and that the sole reason for enrolling the student was to take advantage of respondent’s schools.  The superintendent indicated that petitioners could appeal his determination to the Commissioner of Education within 30 days.  This appeal ensued.  Petitioners’ request for interim relief was denied on September 18, 2019.

Petitioners contend that respondent’s determination is arbitrary and capricious because they “surrendered parental control” of the student to the custodians.  Petitioners further assert that they currently live in California and that it is in the student’s “best interest” to remain with the custodians and attend respondent’s schools because their “living situation is unstable.”  Petitioners request a finding that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent argues that the appeal must be dismissed as untimely.  On the merits, respondent contends that petitioners failed to demonstrate that they effected a complete transfer of custody and control of the student to the custodians.

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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

The superintendent’s decision from which petitioner appeals is dated July 30, 2019.  Affording five days for mailing, excluding Sundays and holidays, petitioners were required to commence an appeal by September 4, 2019.  Petitioners served the instant petition on September 11, 2019.  Petitioners assert that they did not “receive” the superintendent’s determination because, although it was mailed to the Gibbs’ home address and Ms. Gibbs’ work email address, July 30, 2020 was Ms. Gibbs’ “last day of employment” and petitioners had moved from their residence by that date.[1]  Petitioners, however, submit no proof in support of these assertions.  Moreover, as respondent asserts, the communication was sent to the address petitioners identified as their own, as well as the email address Ms. Gibb used in communicating with the district as late as July 29, 2019, the day before respondent’s determination.  Respondent also indicates that neither the email nor the letter was returned to the district as undeliverable.  Under these circumstances, I find that the district reasonably utilized these addresses to communicate with petitioners and cannot be faulted for the unforeseeable circumstances described by petitioners (see Appeal of Simonis, 60 Ed Dept Rep, Decision No. 17,889).

Even if the appeal were not subject to dismissal as untimely, it 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioners have failed to prove that they effected a complete transfer of custody and control of the student to the custodians.  With their petition, petitioners include a letter to respondent indicating that they granted “temporary authority” of the student to the custodians to exercise certain duties.  Petitioners also submit a childcare authorization which, similarly, indicates that the custodians are temporarily authorized to act in several specified areas.  The authorization is “effective until terminated” by either petitioner.  These documents are temporary on their face and, as such, cannot constitute a permanent or total transfer of custody and control of the student to the custodians (Appeal of Romero, 58 Ed Dept Rep, Decision No. 17,599; Appeal of Burova, 56 id., Decision No. 16,979; Appeal of Polynice, 48 id. 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).[2]  Accordingly, petitioners have failed to meet their burden of proof and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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