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Decision No. 13,406

Appeal of TONJA SIMMONS, on behalf of her daughter, GENEA DuBOIS, from action of the Board of Education of the Greenburgh Central School District regarding admission to school.

Decision No. 13,406

(April 24, 1995)

Arnold B. Green, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her daughter, Genea, is not a resident of the Greenburgh Central School District. The appeal must be dismissed.

On or about January 6, 1994, petitioner wrote to respondent's superintendent informing him that she was moving to the City of White Plains and asking if her son, Chaz Thomas, could finish the school year in respondent's schools. The superintendent denied that request.

In September 1994, petitioner apparently enrolled both Genea and Chaz in one of respondent's schools. Respondent's central office was apparently unaware of their enrollment. On or about November 18, 1994, Chaz informed one of respondent's principals that he lived in White Plains. Chaz further stated that petitioner brings him to school each morning and picks him up at the end of the day at either his grandmother's apartment or at the "Community Center."

Based on that information, the superintendent asked petitioner to submit information by November 28, 1994 concerning her childrens' right to attend school in the Greenburgh district. On November 28, 1994, the superintendent again wrote to petitioner stating that, since he had not heard from her, Genea and Chaz would be excluded from respondent's schools on December 5, 1994. On or about December 5, 1994, petitioner submitted her affidavit together with an affidavit from the childrens' grandmother stating that Genea resides with the grandmother in the Greenburgh district. Respondent reviewed the affidavits and determined that Genea was not a resident of the district. This appeal ensued. Petitioner seeks the readmission of Genea only, and not Chaz, to respondent's schools.

Before addressing the merits, I must address a procedural issue. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR 275.16). The record in this case indicates that respondent excluded Genea from school on December 5, 1994. However, petitioner did not commence this appeal until January 20, 1995. Since petitioner offers no excuse for the lateness of the appeal, it must be dismissed as untimely.

The appeal must also be dismissed on the merits. Respondent alleges and petitioner concedes that she does not reside in the Greenburgh district. However, petitioner contends that Genea resides with her grandmother within the district. Respondent denies that contention. Education Law '3202(1) provides in 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 the statute is to limit the obligation of school districts to provide tuition-free education to those students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446).

In general, a student's residence is presumed to be that of his or her parents (Catlin v. Sobol, 155 AD2d 24, rev'd on other grnds, 77 NY2d 552). However, this presumption can be rebutted by examining the totality of circumstances (Appeal of Ambris, 31 Ed Dept Rep 41). In particular, the presumption is rebutted when it is established that the child's parents have surrendered custody and control and that such control is being exercised by some other person with whom the child lives (see Catlin v. Sobol, supra). Although a court order awarding legal guardianship may be offered to establish a transfer of parental custody and control, it is unnecessary to establish a residence apart from one's parent, where the child's actual and only residence is with the person with whom the child lives (Catlin v. Sobol, supra; Appeal of Pryor, 29 Ed Dept Rep 505; Matter of Takeall, 23 id. 475; Matter of Tiger and Talasko, 16 id. 178).

The record before me indicates that petitioner continues to provide Genea with food, clothing and other necessities. In addition, petitioner continues to assume responsibility for all matters relating to Genea's education and medical care. The record also indicates that petitioner resides in a subsidized two-bedroom apartment in White Plains and that the apartment was made available to her because her children reside with her.

Based on the foregoing, I conclude that petitioner has failed to rebut the presumption that Genea resides with her. Because petitioner does not reside in respondent's district, respondent was not arbitrary or capricious in determining that Genea may not attend its schools tuition-free.