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Decision No. 12,980

Appeal of STEPHANIE CLARY from action of the Board of Education of the City School District of the City of Poughkeepsie regarding residency.

Decision No. 12,980

(August 3, 1993)

Shaw & Silveira, Esqs., attorneys for respondent, Jay M. Siegel, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that she is not a resident of the Poughkeepsie City School District and its refusal to allow her to attend the public schools of the district on a tuition-free basis. The appeal must be dismissed.

Petitioner is seventeen years old and, in August 1992, she moved into the Poughkeepsie City School District. Prior to that time, she lived with her mother in the Wappingers Central School District.

On September 21, 1992, petitioner requested admission to school in respondent's district on a tuition-free basis. Petitioner submitted an affidavit with her request claiming she was emancipated and stating, "Neither my mother nor my father provides me with any support either directly or indirectly at this time." Respondent's superintendent of schools scheduled a meeting on October 27, 1992 with petitioner, her attorney, two employees of Dutchess Youth Services and a Mrs. Farrell who represented herself as petitioner's stepmother. At the meeting, petitioner testified that she is employed 15-20 hours per week at a Stop and Shop, that she received no support from her mother and had no intention of returning home. At the conclusion of the meeting, respondent's superintendent permitted petitioner to attend school in the district on a temporary basis while it continued to review her documentation, as well as her statements at the meeting, and conducted further investigation of her status as an emancipated minor. On October 30, 1992, the superintendent met with petitioner's mother who presented copies of medical bills for her daughter that she paid through her health insurance, as well as a loan statement as evidence that she was making her daughter's car payments, even though the car was registered in petitioner's name. In addition, she presented a copy of a Family Court petition in which petitioner was suing her parent for support.

Based on the information presented by petitioner's mother, the superintendent determined that petitioner was not an emancipated minor. In accordance with '100.2(y) of the Commissioner's regulations, the superintendent forwarded a letter to petitioner, dated November 10, 1992, inviting her to submit to the board of education by November 20, 1992, additional documentation concerning her residency in the district and her status as an emancipated minor. Petitioner presented a copy of her automobile insurance, the title to her automobile and a rent receipt in the amount of $10 at her Poughkeepsie address.

Respondent examined the documents at its December 9, 1992 meeting and determined that petitioner was not entitled to attend the Poughkeepsie City Schools tuition-free. Respondent based its determination on the fact that, although not living with her mother, petitioner continued to receive substantial financial support from her, including coverage on her health insurance plan, payment of certain medical bills and car payments. This appeal ensued. On December 16, 1992, I denied petitioner's request for interim relief.

Pursuant to Education Law '3202(1):

[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.

A student's residence is presumed to be that of one's parent. However, an emancipated minor may rebut this presumption and establish a residence independent of one's parents (Appeal of Popp, 31 Ed Dept Rep 546; Appeal of Pryor, 29 id. 505; Appeal of Deborah V., 29 id. 176). For purposes of establishing residency under Education Law '3202, a student is considered emancipated when he or she is beyond the compulsory school age; is living separate and apart from his or her parents in a manner inconsistent with parental custody and control; is not receiving financial support from his or her parents; and has no intent to return home (Appeal of Werher, 31 Ed Dept Rep 186, 188). Applying these factors to the record before me, I conclude that petitioner has failed to rebut the presumption that her residence remains with her mother, since the record establishes that her mother has not relinquished parental control and apparently acquiesces in her daughter's living arrangements in that she continues to provide substantial financial assistance that enables her daughter to live at a separate address (Catlin v Sobol, 77 NY2d 552). Petitioner not only continues to receive the benefits of her mother's health insurance policy, her mother continues to make her car payments as well as paying for her medical bills.

Thus, based on the totality of the circumstances, I find respondent's decision to deny petitioner tuition-free attendance on the basis that she is not emancipated reasonable (see, Matter of Takeall, 23 Ed Dept Rep 475; Matter of Deborah V., 29 id. 176). Unlike the emancipated minor in Takeall, supra, who had not lived with his mother for a long period of time, was financially independent of her and was not under her control, petitioner continues to receive substantial financial support from her mother, lived with her mother until recently, and seems to be living in a manner consistent with her mother's wishes.

Since petitioner has failed to establish her emancipation, petitioner has not succeeded in rebutting the presumption that her residence is with her mother. Accordingly, there is no basis for me to overrule respondent's decision that she is not a resident of the district.