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Decision No. 13,661

Appeal of ALICE MCCARTHY, on behalf of DANIEL J. MCCARTHY, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 13,661

(August 26, 1996)

Douglas E. Libby, Esq., attorney for respondent

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

Petitioner is a resident of Wappingers Falls, which is outside respondent's district. Her son, Daniel, was a 14 year old eighth grade student at the time this appeal was filed who began living with his adult sister, Kathleen Delisi, at an address within respondent's district on January 1, 1996. On January 2, 1996, Ms. Delisi attempted to enroll Daniel in school and was provided by district officials with a registration packet to complete. On January 5, 1996, petitioner and her daughter, Kathleen Delisi, attempted to register Daniel at respondent's high school using Ms. Delisi's address within respondent's district. In the course of this effort, Ms. Delisi indicated in a sworn statement on the district's school registration form that Daniel was living with her because petitioner was working long hours and was unable to provide him with the attention he needed at that time. In a parent's affidavit, petitioner stated that "Daniel is to live with his sister Kathleen while he is attending school."

By letter dated January 12, 1996, respondent's Director of Pupil Personnel Services informed petitioner and Ms. Delisi that Daniel's application for admission had been denied on the basis of "parental residence outside the district." On January 16, 1996, Ms. Delisi delivered an "appeal letter" to respondent concerning this determination. On January 27, 1996, Ms. Delisi visited respondent's offices to inquire when the appeal would be held and was given a date for the appeal. On February 1, 1996, respondent's designee conducted an administrative review of the residency determination. Respondent asserts that at the hearing, petitioner testified that the junior high school principal in Wappingers Falls agreed with her that Daniel might be better off with a change of environment because of the students he was associating with and informed her that to accomplish this result all she had to do was write a statement that she was giving legal guardianship to her daughter and have that statement notarized. Petitioner provided such a notarized statement to respondent's designee at that time.

Respondent's designee concluded that petitioner resides outside the district and that no permanent transfer of custody and control had occurred to petitioner's daughter. The designee also noted that petitioner sends Ms. Delisi $600 a month for his care and support. By letter dated February 13, 1996, respondent's designee informed petitioner that Daniel's admission had been denied on the basis of parental residence outside the district. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on April 11, 1996.

Petitioner alleges that her son is living with his sister because of family conflict and behavioral problems. Petitioner further asserts that she has surrendered parental control of Daniel to his sister. Respondent contends that its determination that Daniel is not entitled to attend its schools was proper and should be upheld. Respondent also contends that the appeal is untimely.

Before reaching the merits, I will address respondent's procedural defense that the appeal is untimely. The letter by respondent's designee that determined that Daniel was not entitled to attend district schools was dated February 13, 1996. Petitioner commenced this appeal on March 1, 1996. 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, except if excused for good cause shown (8 NYCRR 275.16; Appeal of Johnson, 33 Ed Dept Rep 183; Appeal of Sima-Eichler, 31 id. 550). In this case, petitioner served the petition on March 1, 1996. However, it contained a procedural defect. Petitioner and respondent were notified of the defect by my Office of Counsel and the petition was re-served on March 28, 1996. However, once the defect was corrected, service was determined to have commenced on the original date (Application of Kozak, 34 Ed Dept Rep 501; Matter of Ferraro, 24 id. 275). Therefore, the appeal will not be dismissed as untimely.

Education Law '3202(1) provides, in pertinent 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 this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curren and Knop, 18 id. 523). However, when the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Ritter, 31 id. 24; Appeal of Pinto, 30 id. 374; Appeal of McMullan, 29 id. 310).

In this case, respondent contends that petitioner has not relinquished custody and control of Daniel to her daughter, and that the reason Daniel now resides in the district is to attend school there. The record indicates that petitioner sought to have her son live with his sister due to family conflict, behavioral problems and poor grades and attendance at his school in Wappingers Falls. Although respondent contends that petitioner still supports Daniel, the record reflects that this support consists of $600 a month in social security survivor's benefits, which are generated as a result of the death of Daniel's father.

Petitioner asserts that her daughter has custody of Daniel and can provide him with the supervision he needs. In this case, petitioner felt that Daniel could benefit from his sister's supervision and attend respondent's schools. However, the record does not indicate that a total, presumably permanent, transfer of custody and control has occurred to Ms. Delisi. She has indicated that she will not be supporting Daniel financially. Furthermore, the arrangement appears to be temporary based on the statements of petitioner and Ms. Delisi that Daniel could return home if his behavioral problems are worked out. Based on the documentation and testimony provided, the hearing officer concluded that the relationship between Daniel and his sister was temporary and that the presumption that the child's residence is with his or her parent was not overcome in this case. My review of the record supports respondent's determination. Accordingly, there is no basis to overturn respondent's decision in this matter.