Decision No. 13,622

(June 13, 1996)

Rusk Wadlin Heppner & Martuscello, LLP, attorneys for petitioner, Daniel J. Rusk, Esq., of counsel

Raymond G. Kuntz, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Rondout Valley Central School District ("respondent") that she is not a resident of the district. The appeal must be sustained in part.

Petitioner is a student at respondent's high school. She was born on February 27, 1979 and was over sixteen years of age at the time of this appeal. Prior to July 5, 1995, petitioner resided with her parents in the Ellenville Central School District. Petitioner experienced significant problems with her parents, ran away from home, was hospitalized for depression, missed school and received counseling. Family Court proceedings were also begun when it was determined that petitioner might be a person in need of supervision (PINS). On July 5, 1995, petitioner began residing in respondent's district in a trailer with her guardian, Leena Cooper, and was enrolled in respondent's schools on that basis. On or about November 1, 1995, due to a lack of heat in the trailer, petitioner relocated to the residence of Ramona Collazo on Foordmore Road within respondent's district.

On November 26, 1995, respondent's superintendent notified petitioner's mother that district officials did not believe that petitioner resided in the district and scheduled a hearing to determine petitioner's residency. On December 5, 1995, the superintendent held a hearing which petitioner's mother and Ramona Collazo attended. Although petitioner was at school that day and available to testify, she was not present at the hearing and was told by respondent's dean that she should stay in class.

On December 15, 1995, respondent's superintendent determined that petitioner lacked the means to be an emancipated minor and was not a resident of respondent's district. On December 26, 1995, respondent board ratified its superintendent's determination that petitioner was not a resident of the district. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on January 30, 1996.

Petitioner alleges that she is an emancipated minor and that she resides within respondent's district. Respondent contends that petitioner is not an emancipated minor, does not reside in the district and should be attending school in the Ellenville Central School District where her parents reside.

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Colas, 32 Ed Dept Rep 128; Appeal of Pinto, 30 id. 374). The presumption can be rebutted, however, by establishing that the pupil is an emancipated minor (Appeal of Werher, 31 Ed Dept Rep 186; Appeal of Forde, 29 id. 359). Petitioner argues that she is emancipated and that she has established a residence within respondent's district.

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 any financial support from his or her parents; and has no intent to return home (Appeal of Werher, 31 Ed Dept Rep 186).

On the record before me, I am unable to determine petitioner's residency status. Respondent did not permit petitioner to be present at the residency hearing and present evidence to support her claim of emancipation. Therefore, I remand this matter to respondent for a thorough determination of petitioner's status.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent hold a hearing pursuant to 8 NYCRR 100.2(y) with petitioner present to determine whether petitioner is an emancipated minor and entitled to attend the schools of the Rondout Valley Central School District.

IT IS FURTHER ORDERED that respondent permit petitioner to remain in school until the conclusion of its residency determination.

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