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Decision No. 12,995

Appeal of GWENDOLYN BRITTON from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 12,995

(August 31, 1993)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that her son, Dinnearl Britton, is not a resident of the Sewanhaka Central High School District ("the district"). The appeal must be dismissed.

In August 1992, I issued a decision finding that petitioner's son was not a resident of the district (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; ["Britton I"]). Finding that Dinnearl resided with his parents in Hempstead, outside the district, I held that he was not entitled to attend the district's schools tuition-free (id.). The history of this matter is set forth in my prior decision.

Petitioner's cousin, Elsie Brandon, resides at 173 Roquette Avenue, Elmont, within the district. On September 9, 1992, in response to Britton I, petitioner commenced proceedings in Family Court to name Ms. Brandon as Dinnearl's legal guardian. The next day, Ms. Brandon sought Dinnearl's admission to school in the district. In support of the application, petitioner's affidavit stated that she relinquished custody of Dinnearl to her cousin so that Dinnearl could attend school in the district. By letter dated September 11, 1992, the district's director of pupil personnel services ("the director") advised petitioner and Ms. Brandon that Dinnearl was not considered a resident of the district and would not be permitted to attend school there tuition-free. The director's letter advised petitioner and her cousin of their right to appeal to the district's impartial hearing officer, who served as the district's "designee" for purposes of '100.2(y) of the Regulations of the Commissioner of Education (8 NYCRR 100.2[y]).

A hearing took place on September 15, 1992 to review the director's decision. In a report dated September 16, 1992, the hearing officer denied the appeal, finding that petitioner had transferred guardianship to her cousin "for the sole purpose of `taking advantage of the school district.'" Petitioner commenced this appeal ("Britton II") on September 17, 1992. A request for interim relief was denied on September 28, 1992. Petitioner has subsequently commenced a third appeal ("Britton III") which is pending before me. The decision herein decides only those claims raised in Britton II.

Education Law '3202(1) provides:

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 (Education Law '3202[1]).

As I stated in Britton I, a child's residence is presumed to be that of his parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151, 152, supra). Moreover, the purpose of Education Law '3202(1) is to limit the obligation of school districts to provide tuition-free education only to students whose parents or legal guardians reside within the district (id.).

Although formal guardianship proceedings are not necessary to establish custody and control for purposes of residency (Appeal of Pernell, 30 Ed Dept Rep 380, 382), a student is presumed to reside in a particular school district when a court has, in fact, issued letters of guardianship to an adult residing within that district (see, e.g., Appeal of Hilaire, 31 Ed Dept Rep 84). There is nothing in this record, however, to suggest the court ever transferred guardianship to Ms. Brandon. Indeed, courts will not transfer legal guardianship if the proposed transfer "represents a plan contrived to defeat the right of the school district to exclude nonresidents" (Matter of Proios, 111 Misc 2d 252, 253). It is undisputed that petitioner attempted the guardianship transfer solely to secure Dinnearl's admission to the district (cf., Appeal of Pinto, 30 Ed Dept Rep 374). On the record presented, therefore, the hearing officer's determination was reasonable and will not be disturbed.