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Decision No. 13,479

Appeal of DAWN JEFFREY, on behalf of her daughter, JANIELLE PETTIGREW, from action of the Board of Education of the Chester Union Free School District regarding residency.

Decision No. 13,479

(August 31, 1995)

Shaw & Silveira, Esqs., attorneys for respondent, Garrett L. Silveira, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that her daughter, Janielle, is not a resident of the Chester Union Free School District ("district") and is, therefore, not entitled to attend its schools tuition-free. The appeal must be sustained.

In November 1993, petitioner submitted a notarized letter to the district stating that her mother, Mary Simmons, and her aunt, Marsha Cozier, both of 4 Wedgewood Drive, would be Janielle's legal guardians. Thereafter, the district communicated with Ms. Simmons and Ms. Cozier about Janielle.

By letter dated August 23, 1994, the district's superintendent notified Ms. Cozier that 4 Wedgewood Drive was not located within the district. Ms. Cozier allegedly told the superintendent that Janielle would move into a residence within the district. On September 26, 1994, the superintendent wrote a second letter to Ms. Cozier in which he requested that she submit proof of Janielle's residency. He received no response.

Thereafter, the district hired an investigator to determine whether Janielle resided at 4 Wedgewood Drive. The investigator surveilled 4 Wedgewood Drive and 10 Birchwood Drive, petitioner's alleged residence which is located within the district, over a period of five days in January 1995. The investigator's report indicated that Janielle left 4 Wedgewood Drive each morning and entered the residence at 10 Birchwood Drive before boarding a district school bus at a designated stop in front of that address. The report further indicated that on each afternoon, while Janielle exited the district's school bus at 10 Birchwood Drive, she did not enter that address but instead walked back to 4 Wedgewood Drive. Consequently, the investigator reported that Janielle resided at 4 Wedgewood Drive, outside the district.

Following this investigation, the superintendent wrote two more letters to Ms. Cozier, requesting that she submit evidence of Janielle's residence. In response, the superintendent received a letter from Florence Wells, dated March 24, 1995, stating that petitioner and Janielle resided in her home at 10 Birchwood Drive for the last year. Five days later, Ms. Wells sent a similar letter, which was notarized, to the superintendent.

The superintendent telephoned petitioner on April 5, 1995 and requested additional proof of residency. Petitioner did not submit any further proof.

By letter dated May 9, 1995, the superintendent advised Ms. Cozier that he did not consider Janielle to be a resident of the district. Petitioner commenced this appeal on May 16, 1995 and requested a stay to allow Janielle to continue attending school in the district. On May 22, 1995, Commissioner Sobol issued an interim order directing respondent to admit Janielle pending a determination on the merits of this appeal.

Before reaching the merits, I must address a procedural issue raised by respondent. Respondent contends that the petition should be dismissed because it is not properly verified in violation of 8 NYCRR 275.5. Specifically, respondent maintains that the notary did not sign his full name and failed to note the date his commission expires.

Under the Executive Law, a notary public is required to print, typewrite, or stamp beneath his signature his or her name, the words "Notary Public State of New York," the name of the county in which he or she originally qualified, and the date upon which his or her commission expires (Executive Law '137). Section 137 provides, however, that no official act of such notary public shall be held invalid on account of the failure to comply with these provisions (Id.). Therefore, the notary's failure to list the expiration date of his commission does not, in and of itself, invalidate the verification. In addition, it does not appear that the lack of a full signature invalidates the verification. The term "signature" includes any memorandum, mark or sign placed upon any instrument or writing with intent to execute or authenticate such instrument or writing (Gen. Constr. Law '46). Furthermore, respondent has not offered any evidence that the petition was not actually signed by the notary as indicated, or that the notary's commission had expired. Therefore, I will not dismiss the petition on procedural grounds.

Turning to the merits of the appeal, 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.

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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (Appeal of Brutcher, supra; Appeal of McMullan, 29 Ed Dept Rep 310). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination of whether the parent has given up custody and control of the child (Appeal of Scarpino-Prince, 34 Ed Dept Rep 650). Where the parent continues to exercise custody and control of the child and continues to support the child, the presumption is not rebutted, and the child's residence remains with the parent (Appeal of Scarpino-Prince, supra; Appeal of Brutcher, supra; Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279).

The record reveals that in November 1993, petitioner submitted a notarized statement to the district stating that petitioner's mother and aunt would be Janielle's legal guardians. This letter, however, in and of itself, is insufficient to establish a transfer of custody and control. In fact, there is no evidence in the record concerning who supports Janielle or who exercises control over her. Specifically, there is no evidence that petitioner has ceased supporting Janielle or that she is no longer responsible for her. Moreover, the 1993 letter purporting to transfer guardianship is contradicted by the petition, wherein petitioner alleges that Janielle resides with her at 10 Birchwood Drive within the district. Accordingly, I find that the presumption that Janielle resides with petitioner has not been rebutted.

Furthermore, respondent has not offered any evidence to show that petitioner does not reside at 10 Birchwood Drive. In fact, the record contains a notarized letter from Florence Wells, the alleged owner of 10 Birchwood Drive, which states that petitioner and her daughter have lived there for the past year. Respondent's own surveillance report indicates that the tax assessor's office lists David and Florence Wells as the owners of 10 Birchwood Drive. In addition, respondent concedes that petitioner recently provided it with a copy of her lease for 10 Birchwood Drive as well as rent receipts covering the period from July 1994 through May 1995.

Respondent argues that its surveillance of Janielle shows that she lives outside of the district. While the unsworn surveillance report does show Janielle leaving and returning to 4 Wedgewood Drive on five separate school days in January, this alone is not conclusive evidence that Janielle resides at 4 Wedgewood Drive. In addition, on each occasion, Janielle entered the residence at 10 Birchwood Drive in the morning before she boarded the school bus. This fact demonstrates that Janielle had some relationship with the residents of 10 Birchwood Drive.

In sum, the totality of the circumstances do not demonstrate that there has been a total transfer of custody and control of Janielle to someone other than petitioner. Furthermore, there is no evidence in the record to disprove petitioner's claim that she resides at 10 Birchwood Drive. Accordingly, based on the evidence before me, I am constrained to conclude that Janielle is a resident of the district.