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Decision No. 13,803

Appeal of DAVID REYNOLDS from action of the Board of Education of the Fredonia Central School District regarding residency.

Decision No. 13,803

(July 30, 1997)

Chautauqua County Legal Services, Inc., attorneys for petitioner,

Marla J. Piazza, Esq., of counsel

Wayne A. Vander Byl, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals respondent's determination that he is not a resident of the Fredonia Central School District. The appeal must be dismissed.

Petitioner was a resident student of the Fredonia Central School District during the 1994-95 and 1995-96 school years, during which petitioner attended the district's STEP (School to Employment Program) program as a ninth and tenth grader. In September 1996, petitioner's family moved to the Dunkirk City School District. Petitioner remained in respondent's district and returned to Fredonia High School in the eleventh grade. He continued in the STEP program, attending Fredonia High School half of each day for academics and a BOCES occupational program for the other half of each day.

On September 19, 1996, petitioner consulted with his guidance counselor about the possibility of changing his program to attend the BOCES alternative high school. On September 20, 1996 petitioner's father called to speak with the guidance counselor about a possible transfer. During the course of that discussion, the issue of petitioner's residence arose. The guidance counselor asked if petitioner was an emancipated minor. Petitioner's father replied that he was not. Petitioner's father further stated that he was paying rent for petitioner to stay in an apartment in respondent's district so that petitioner could continue to attend the STEP program, in which he had performed well. Petitioner's father also wanted petitioner to continue to attend school in respondent's district.

The counselor told petitioner's father that, under those circumstances, petitioner could not be considered a resident of the district, and that he should look into enrolling petitioner in the BOCES alternative high school through the Dunkirk City School District, where petitioner's parents reside. However, because the guidance counselor was not authorized pursuant to 8 NYCRR '100.2(y) to make any final determination concerning student residency, petitioner continued to attend school in respondent's district.

On September 24, 1996, respondent's business administrator, Carter Town, acting on behalf of the superintendent of schools, Dr. James P. Coon, met with petitioner and his father. Mr. Town told them that petitioner's residence was at issue based on the information that the guidance counselor previously obtained from petitioner's father. Mr. Town asked them, pursuant to 8 NYCRR '100.2(y), to provide information regarding petitioner's residence. At the meeting, petitioner's father indicated that he and his family reside in Dunkirk, New York and that he is paying rent for petitioner to live at 9 Eagle Street, Fredonia, New York, because he wants petitioner to be able to attend school in the Fredonia Central School District.

Based on that information, respondent's superintendent of schools, Dr. Coon, determined that petitioner was not a resident of respondent's district and that he should be excluded from the district's schools on September 25, 1996. By letter dated September 26, 1996, Dr. Coon notified petitioner's parents of his determination. On October 8, 1996, petitioner initiated this appeal from respondent's determination. On November 14, 1996 I denied petitioner's request for interim relief.

In this appeal, petitioner asserts that he is living on his own, renting an apartment with a friend in respondent's district. He alleges that this arrangement began in June 1996, prior to his parents' move to Dunkirk, because there was not enough room in the household. Petitioner claims that, as a resident of respondent's district, he is entitled to attend school there without payment of tuition. Respondent asserts that petitioner's residence continues to be that of his parents in the Dunkirk City School District.

Initially, I note that petitioner initiated this appeal on his own behalf, but that he is under the age of 18. A person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law '310 (Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 43). Because petitioner is not 18 years of age, the appeal cannot be maintained and is dismissed.

Even if the appeal were properly before me, the record supports respondent's determination that petitioner is not a resident of the Fredonia Central School District. 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 Simond, 36 Ed Dept Rep 117; Appeal of Brutcher, 33 id. 56).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Simond, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151). 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 in the district (Appeal of Simond, supra; Appeal of Brutcher, supra; Appeal of Garretson, 31 Ed Dept Rep 542) or that the student is emancipated. 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 Simond, supra; Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279). 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 his residence is that of his parents in the Dunkirk City School District. The record indicates that petitioner's father paid rent for petitioner's apartment in the Fredonia Central School District. Although the petition contains a conclusory statement that petitioner's father no longer pays his rent, petitioner offers no proof in support of that allegation, such as an affidavit by his father. More importantly, petitioner does not deny that he was receiving financial support from his father at the time he claimed residency in respondent's district. The record also indicates that petitioner's father contacted petitioner's guidance counselor at the beginning of the school year to discuss petitioner's academic program and requested petitioner's academic program be changed from the regular high school to an alternative high school. Thus, the record does not establish that petitioner was living in a manner inconsistent with parental custody and control.

Even if petitioner's parents had relinquished total custody and control of their son, the record indicates that petitioner was living in respondent's district solely to continue to take advantage of the educational program he had previously commenced. In its answer, respondent submits an affidavit by petitioner's guidance counselor indicating that, in a telephone conversation on September 20, 1996, petitioner's father stated that he was paying rent for his son to stay in an apartment in respondent's district because petitioner was doing well in his educational program and that he wanted his son to continue to go to school in the district and remain in that program. Petitioner failed to submit a verified reply to the answer; he has not denied that statement nor submitted any evidence in affidavit or other form to rebut respondent's allegation.

Based on this record, I find petitioner failed to rebut the presumption that his residence is with his parents in the Dunkirk City School District. Moreover, I find that petitioner's parents helped maintain his apartment in respondent's district solely so he could benefit from respondent's educational program. On this record, I cannot find that respondent acted arbitrarily by determining that petitioner did not reside in its district.