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Decision No. 13,812

Appeal of LENORA FERREIRA, on behalf of her son RAVANNA SMITH, from action of the Board of Education of the Ellenville Central School District regarding residency.

Decision No. 13812

(August 13, 1997)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Daniel Petigrow, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Ellenville Central School District ("respondent") that her son, Ravanna Smith, is not a resident of the district. The appeal must be dismissed.

In September 1995, petitioner presented a sworn affidavit to the district indicating that she was transferring total care, custody and control of her son Ravanna to her brother, Gerald Richardson, a district resident. On the basis of this affidavit, Ravanna was admitted to respondent's school tuition-free.

On December 17, 1996, the District's Director of Special Education, Scott Shaw, received a letter from petitioner, in which she requested that the district reevaluate Ravanna's placement at the New Paltz Boces and that the Committee on Special Education ("CSE") redetermine an appropriate placement for him. In that same letter, petitioner additionally requested the district to provide her advocate with access to her son's education records. The return address on petitioner's letter was in St. Albans, Queens, New York, outside the district. Mr. Shaw brought this letter to the attention of the Superintendent, Mr. Peter Ferrara, who is also respondent's designee for determining residency.

By letter dated January 17, 1997, Mr. Ferrara informed petitioner that questions had arisen about Ravanna's residency and requested that petitioner appear at a hearing to submit evidence demonstrating Ravanna's right to attend respondent's schools tuition-free. Mr. Ferrara also expressed concern that petitioner's actions in requesting a CSE meeting and seeking a reevaluation of Ravanna's placement appeared inconsistent with her purported surrender of care, custody and control to Gerald Richardson in September 1995. The letter continued, "[s]ince you continue to make decisions regarding Ravanna's educational program, we must assume that as Ravanna's parent you still exercise care, custody and control of Ravanna. In that you reside outside the school district, Ravanna may no longer be eligible to attend our schools."

Although that letter scheduled a residency hearing for January 22, 1997, it apparently was not held until January 30. At that time, petitioner met with Mr. Ferrara. Instead of demonstrating that Mr. Richardson had care, custody and control of Ravanna in accordance with the September 1995 letter, petitioner attempted to establish that she was now a resident of the district. Petitioner presented a copy of a canceled check signed by her brother indicating payment of taxes and copies of handwritten rent receipts, also signed by her brother. Mr. Richardson did not attend the hearing, even though the January 17 letter expressly stated that he could accompany petitioner. Mr. Ferrara advised petitioner the afternoon of the hearing that the information submitted was insufficient to establish residency within the district and suggested appropriate proof, such as a voter registration card or a passport. He also gave petitioner until February 4 to present further documentation, and informed her that if such documentation was not received, Ravanna would no longer be eligible to attend school in the district.

On January 31, petitioner submitted a copy of a New York State Learner's Permit, issued January 31, 1997, and a voter registration card, both listing her address as 11 Hoar Street, Ellenville, New York, which is Mr. Richardson's address. At Mr. Ferrara's request, the district clerk, Barbara Hufnagel, spoke with a housing inspector for the village of Ellenville, who informed her that no Certificate of Rental Safety, which is required before a property may be rented for residential purposes, had been applied for or issued for the Hoar Street address. In addition, the clerk contacted the post office in both Ellenville and St. Albans and ascertained that petitioner received regular mail at the St. Albans address listed as the return address on the December 1996, letter, not at the Hoar Street address.

On February 6, 1997, Mr. Ferrara sent petitioner another letter requesting that she contact him to answer additional questions concerning the care, custody and control of her son. During a phone conversation with Mr. Ferrara the following day, petitioner responded that she was financially responsible for providing Ravanna's food, shelter, clothing and health insurance; that if Ravanna damaged school property or lost textbooks or equipment, she would be responsible for reimbursing respondent; and that Ravanna was living with her brother because it was more convenient and she wanted him to attend school in Ellenville, not New York City. By letter dated February 10, 1997, Mr. Ferrara again wrote petitioner informing her that based on both her responses to his questions and the insufficient evidence submitted on January 31, petitioner had neither established residency in the district nor demonstrated that she had totally relinquished care, custody and control of Ravanna to her brother, Mr. Richardson. Consequently, Mr. Ferrara determined that Ravanna was not entitled to attend school in respondent's district on a tuition-free basis as of February 28, 1997. Petitioner was also advised of her right to appeal the decision.

On February 24, 1997, the district clerk received a Notice of Petition, with no supporting affidavits, documents or application for stay attached. A copy of the petition with supporting documents was finally received on April 2, 1997. In spite of the fact that petitioner did not request a stay of Mr. Ferrara's decision, he met with petitioner and Mr. Shaw on April 9, 1997, to readmit Ravanna to school for the remainder of the school year, pending a decision in this "310 appeal.

Respondent claims that the petition does not comply with '275.10 of the Commissioner's regulations requiring a clear and concise statement of petitioner's claim showing that petitioner is entitled to relief. Respondent also argues that petitioner is not a resident of the district, nor has she surrendered total care, custody and control of her son to a resident of the district. Moreover, respondent asserts that its determination that Ravanna was no longer eligible to attend its schools was reasonable and appropriate and complied with the Commissioner's regulations. I agree.

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 Keenan, 36 Ed Dept Rep 6; 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 Keenan, supra; 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, 32 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; 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, 32 Ed Dept Rep 24; Appeal of McMullan, supra).

The record before me contains insufficient evidence to rebut the presumption that Ravanna's residence is that of his mother, who resides outside the district. To the contrary, the weight of the evidence supports respondent's determination that Ravanna is not a resident of the district. Although petitioner had previously argued that she had relinquished control of Ravanna to Mr. Richardson, it seems clear, based on her December 1996 letter to Mr. Shaw, that she never totally surrendered care, custody and control of Ravanna to her brother, but rather continued to retain control over Ravanna's educational program. An unsworn, unnotarized statement from Mr. Richardson, included in the petition, does not even address the question of his custody of Ravanna. Nor does it support petitioner's new argument that she now actually lives at the Hoar Street address. In his unsworn statement, Mr. Richardson merely states that he has "no intention of changing my rental arrangement with Lenora Ferreira to separate her utility expenses. Her rent includes the cost of electricity, heat and water. This arrangement has been agreeable to both us [sic] in the past and is still satisfactory to me." In fact, Mr. Richardson doesn't even mention the address at which this "rental arrangement" occurs. In addition, the rental receipts do not have an imprinted number on them; they are merely hand-numbered sequentially 1 - 20, for the twenty months from September 1995, through March 1997. It appears that these receipts could have been made at any time for any purpose.

Nor am I persuaded by petitioner's submission of a learner's permit or voter registration card. Although they contain the Hoar Street address, they were only submitted after petitioner's initial meeting with Mr. Ferrara. In fact, the learner's permit was not even issued until January 31, 1997. I am left to speculate on what basis petitioner obtained these documents, since petitioner has provided no other documentation evidencing her current residency in the district. See, e.g., Appeal of France, 36 Ed Dept Rep 122; Appeal of Lawrence, 36 id. 374. In any case, I find these documents to be unpersuasive.

Notwithstanding the lack of a Certificate of Rental Safety, even if petitioner did indeed pay rent to her brother in Ellenville, she does not rebut the fact that she continued to receive her regular mail at St. Albans, Queens. Even more importantly, petitioner admits that she was financially responsible for providing Ravanna's food, shelter, clothing and health insurance; that if Ravanna damaged school property or lost textbooks or equipment, she would be responsible for reimbursing respondent; and that Ravanna was living with her brother because it was more convenient and she wanted him to attend school in Ellenville, not New York City. Thus, the evidence clearly indicates that if Ravanna is residing with Mr. Richardson, he is doing so solely to take advantage of the schools of the district. Accordingly, Ravanna has failed to establish residency in Ellenville (Appeal of West and West, 36 Ed Dept Rep 76). Furthermore, the record indicates that respondent followed the procedures in 8 NYCRR '100.2(y). That section 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. When the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is neither a resident of such district nor entitled to attend its schools, such board or its designee shall, within two business days, provide written notice of its determination to the child's parent, to the person in parental relation to the child, or to the child, as appropriate.

Section 100.2(y) further provides that the written notice must state, among other things, ". . . the basis for the determination that the child is neither a resident of the district nor entitled to attend its schools . . ." (8 NYCRR '100.2(y)(2)) and that the determination of the board may be appealed to the Commissioner of Education (8 NYCRR '100.2(y)(4)).

Based on respondent's evidence, which petitioner does not rebut, respondent fully complied with the procedures required in '100.2(y). Indeed, respondent went beyond the requirements of the regulation by giving petitioner at least three opportunities after his January 17, 1997 letter of notice to present evidence of either her residency or her surrender of care and custody: the January 30 hearing, an extension until February 4, and the February 6 telephone conversation. In addition, Mr. Ferrara, on his own accord, readmitted Ravanna until the end of the school year pending this decision. In all aspects, respondent acted reasonably, appropriately and in full compliance with the Commissioner's regulations.