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Decision No. 13,675

Appeal of MICHAEL H. SIMOND, on behalf of IZUMI DOI, from action of the Board of Education of the Eastchester Union Free School District and Dr. Robert W. Pellicone, Superintendent of Schools, regarding residency.

Decision No. 13,675

(September 6, 1996)

Steyer & Sirota, Esqs., attorneys for petitioner, Murray Steyer, Esq., of counsel

Keane & Beane, P.C., attorneys for respondents, Lawrence Praga, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondents' determination that Izumi Doi is not a resident of the Eastchester Union Free School District ("district"). The appeal must be dismissed.

Between 1986 and 1992, Izumi lived with her parents at an address within the district and attended the district's schools. During this period, Izumi became friends with petitioner's daughter. Eventually, Izumi's family and petitioner's family developed a close friendship. Prior to 1986, Izumi had lived in Japan.

In 1992, Izumi and her parents moved back to Japan. In April 1995, Izumi came to the United States and visited petitioner's family. At that time, Izumi expressed a desire to leave Japan and come live with petitioner's family. On August 29, 1995, Izumi arrived in the United States.

On that same day, petitioner attempted to register Izumi in the district. As proof of residence, petitioner submitted a "certificate of appointment" signed by Izumi's parents and witnessed by a Japanese attorney, Isao Shindo. In the certificate of appointment, Izumi's parents appointed petitioner "to be the guardian of ... Izumi ... during her minority and during her stay in the United States." Petitioner also submitted an affidavit signed by him which requested "that Izumi Doi be admitted as a full-time student at Eastchester High School for the school year 1995/1996 upon her return to the United States, to complete high school and prepare her for college in the USA." The affidavit stated that Izumi would reside with petitioner and his family.

On August 30, 1995, the district's superintendent advised petitioner that he was not satisfied with the certificate of appointment. On September 7, 1995, the superintendent spoke with a person identifying himself as Isao Shindo, the attorney who witnessed the certificate of appointment. In that conversation, Mr. Shindo stated that the certificate of appointment could be rescinded at any time by Izumi's parents. In addition, Mr. Shindo stated that Izumi's parents would unquestionably be giving financial support to Izumi.

On September 11, 1995, petitioner met with the superintendent. At that time, the superintendent advised petitioner that there was insufficient evidence to demonstrate that Izumi was a resident of the district. By letter dated September 13, 1995, the superintendent notified petitioner that Izumi was not entitled to attend the district's schools.

Subsequent to the superintendent's determination, petitioner sent a letter to Izumi's parents. In that letter, dated September 21, 1995, and sworn to September 29, 1995, petitioner advised Izumi's parents of the superintendent's decision. Petitioner also stated that he would be responsible for Izumi's financial support, including food, clothing, health, welfare, education, upkeep, any medical attention and all other necessities. By letter dated September 22, 1995, and sworn to September 29, 1995, Izumi's parents stated that "we both understand we have fully relinquished care, control, and custody of our daughter Izumi and transferred same to you. We will not contribute anything financially for Izumi's upkeep and are grateful for what you are and will be doing for her."

Petitioner commenced this appeal on October 3, 1995 and requested an interim order. On October 11, 1995, I granted an interim order directing respondents to admit Izumi to the district's schools pending a final determination on the merits.

Petitioner maintains that Izumi's parents surrendered custody and control of Izumi to him as evidenced by their sworn statements to that effect. In addition, petitioner maintains that respondent violated 8 NYCRR 100.2(y) because the basis for the decision was not set forth in the district's written determination and he was not given the opportunity to submit information concerning Izumi's right to attend school in the district. Respondents contend that they have not violated '100.2(y) and argue that Izumi is living with petitioner solely to attend the district's schools. Respondents further contend that the affidavit signed by Izumi's parents was only made after Izumi was excluded from the district's schools.

Section 100.2(y) of the Regulations of the Commissioner of Education provides, in pertinent part:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district.

Section 100.2(y) further provides that the written notice must state "... the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools ..." (8 NYCRR 100.2[y][2]).

In this instance, petitioner argues that he was not afforded the opportunity to present evidence regarding Izumi's residency because the district's superintendent never provided him with the State Education Department's "Model Custodial Affidavit" and "Model Parent Affidavit." Although these forms are useful, there is nothing in the Commissioner's regulation which mandates that districts offer the State Education Department's model affidavits to persons attempting to establish residency. Section 100.2(y) merely requires that when challenged, parents or persons in parental relation have an opportunity to submit information concerning a child's right to attend the schools of the district prior to a final determination (Application of Mandel, 29 Ed Dept Rep 187). In this case, it appears that the superintendent permitted petitioner to submit an affidavit and certificate of appointment prior to making his residency determination. In addition, the superintendent discussed the matter with petitioner on two occasions prior to making his determination. Therefore, the record shows that petitioner was afforded the opportunity to present information regarding Izumi's residency prior to the superintendent's final determination.

The record also shows that the district provided petitioner with the basis for its determination. The superintendent's determination states "based upon my findings, you have not verified that you are the permanent guardian of Izumi Doi; also, verification that you are not receiving financial support for the child is questionable." Although this statement is brief, I find it sufficiently informs petitioner of the basis for the superintendent's determination.

Notwithstanding the procedures of '100.2(y), since the matter is now before me and petitioner has had ample opportunity to present evidence in support of his claim, I will address the merits. Upon review of the record, I find that the weight of the evidence supports respondents' determination that Izumi is not entitled to attend the district's schools.

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 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 Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (Appeal of McMullan, 29 Ed Dept Rep 310). 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 Brutcher, supra; Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279; Appeal of Garretson, supra). Moreover, where 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 Ritter, 31 Ed Dept Rep 24; Appeal of McMullan, supra).

In this case, petitioner has not rebutted the presumption that Izumi's residence is with her parents in Japan. First, there has not been a total and permanent transfer of custody and control to petitioner. The record indicates that Izumi's residence with petitioner is temporary. The certificate of appointment signed by Izumi's parents appoints petitioner as guardian of Izumi "during her minority and during her stay in the United States." Furthermore, the record indicates that an individual by the name of Isao Shindo, who identified himself as the Japanese attorney for Izumi's parents, called the superintendent and told him that the certificate of appointment was not permanent and could be rescinded at any time. Although in his reply, petitioner asserts that Mr. Shindo was not the attorney for Izumi's parents, there is no explanation of how or why Mr. Shindo called the superintendent on behalf of Izumi's parents. Further, Izumi's parents do not themselves deny that Mr. Shindo represented them.

Nor are two sworn statements submitted by petitioner and Izumi's parents after respondents' determination sufficient to rebut the presumption that Izumi resides with her parents. It appears that these statements were prepared only after petitioner retained an attorney, and are conspiciously crafted in such a way as to establish residency. The timing of these affidavits and their conflict with earlier representations clearly raises a question as to their credibility. Moreover, a statement purporting to transfer custody is not, by itself, determinative (Appeal of Fichtner, 22 Ed Dept Rep 119). Furthermore, although these statements purport to make petitioner responsible for Izumi's support, education and welfare, they still confirm that Izumi will reside with petitioner only while she continues her education in the United States, and not beyond that. When taken into consideration with the other evidence in the record, these statements are inconclusive.

In this instance, petitioner has failed to rebut the presumption that Izumi's residence is with her parents in Japan. For purposes of Education Law '3202, a person can have only one legal residence (Appeal of Love, 35 Ed Dept Rep 71; Appeal of Britton, 33 id. 198). A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Love, supra; Appeal of Gibson, 31 id. 284). On this record, I cannot find that the district acted arbitrarily by finding that Izumi is not a resident of the district.

In light of the desire of petitioner, Izumi and her parents that Izumi attend the Eastchester schools, I note that the district may, in its discretion, allow Izumi to attend school as a non-resident with the payment of tuition, if it accepts non-residents on that basis. Such an arrangement may constructively address the concerns of all parties.