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Decision No. 14,207

Appeal of BABETTE DAVIS, on behalf of NAKISHA NELSON, from action of the Board of Education of the Longwood Central School District regarding residency.

Decision No. 14,207

(August 31, 1999)

Ingerman, Smith, LLP, attorneys for respondent, Mary Anne Sadowski, Esq. of counsel

MILLS, Commissioner--.Petitioner appeals the determination of the Board of Education of the Longwood Central School District ("respondent") that petitioner's niece, Nakisha Nelson, is not a district resident. The appeal must be dismissed.

Petitioner is the aunt of Nakisha Nelson. Petitioner alleges that Nakisha lives with her rather than with Nakisha's mother because of problems in their relationship, including the inability of Nakisha's mother to get Nakisha to attend school regularly. Petitioner, who resides within respondent's district, alleges that she supports Nakisha, provides her with food, clothing and shelter, and exercises control over her activities and behavior. Petitioner further alleges that her home is Nakisha's only residence, and that Nakisha intends to live with her for fourteen months.

Petitioner asserts that she agreed to let Nakisha live with her on the condition that Nakisha regularly attend school. Petitioner alleges that Nakisha moved into her home in January 1999 and began attending school in respondent's district. Petitioner claims that Nakisha applied for admission in the district in February 1999, but was denied admission by respondent in March 1999, at which time Nakisha stopped attending school.

Petitioner seeks a determination that Nakisha is a district resident. Petitioner's request for interim relief was denied on May 14, 1999.

Respondent contends that Nakisha does not reside within the district and maintains that the appeal must be dismissed on procedural grounds and on the merits.

The appeal must be dismissed for several procedural reasons. First, there is no evidence that petitioner ever served respondent with the petition, as required by section 275.8 of the Commissioner's Regulations. Accordingly, the appeal must be dismissed (Appeal of Lee D., 38 Ed Dept Rep 262, Decision No. 14,029). In addition, the petition herein is not verified, as required by section 275.5 of the Commissioner's Regulations. When a petition is not properly verified, the appeal must be dismissed (Appeal of Shabazz, 38 Ed Dept Rep 481, Decision No. 14,076; Appeal of Biggins, 35 id. 357, Decision No. 13,569; Appeal of Frasier, 34 id. 315, Decision No. 13,325). Finally, petitioner failed to include with her petition the notice to respondent that is required pursuant to section 275.11 of the Regulations of the Commissioner.

Thisappeal must also be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of McCall, 35 Ed Dept Rep 38, Decision No. 13,456). In the instant case, respondent denied Nakisha admission to its schools by letter dated March 22, 1999. While the petition is dated April 26, 1999, as noted above, there is no evidence that respondent received a copy of the petition until May 11, 1999, when my Office of Counsel transmitted a copy of it to respondent via facsimile. Even if I were to assume that respondent was properly served with a copy of the petition as early as April 26, petitioner was still late in commencing this appeal, and has offered no excuse for her delay. Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Cortes, 37 id. 114, Decision No. 13,818; Appeal of Simond, supra). However, this presumption may be rebutted (Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14.007; Appeal of Brutcher, 33 id. 56, Decision No. 12,973; Appeal of McMullan, 29 id. 310, Decision No. 12,304). 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 Gorrasi, 35 Ed Dept Rep 68, Decision No. 13,467; Appeal of Mullen, 35 id. 43, Decision No. 13,459; Appeal of Brutcher, supra).

In this case, the transfer of Nakisha's custody and control to petitioner was neither total nor permanent. By her own admission, petitioner acknowledges that Nakisha's mother "has not surrendered parental control over Nakisha Nelson." Petitioner also acknowledges that "Nakisha Nelson intends to reside at 4B Williamsburg, Ridge for 1 year 2 months." Because petitioner has not established that there has been a total and permanent transfer of custody and control of Nakisha to petitioner, I do not find respondent's decision to deny Nakisha admission to its schools to be arbitrary, capricious or unreasonable. Accordingly, respondent's determination will not be set aside (Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653).

Although I am dismissing this appeal, I am constrained to admonish respondent for its failure to fully comply with the requirements of 8 NYCRR "100.2(y)("Determination of student residency"). This regulation requires, interalia, that "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 [or] the person in parental relation to the child...the opportunity to submit information concerning the child's right to attend school in the district." In this case, it does not appear that Nakisha's mother or petitioner was ever afforded a formal opportunity to submit information in the manner provided by 8 NYCRR "100.2(y). Furthermore, respondent failed to include in its March 22, 1999 letter to Nakisha's mother the date on which Nakisha would be excluded from the district's schools and the basis for its determination, both of which are required by 8 NYCRR "100.2(y). Accordingly, I admonish respondent to fully comply with the procedures established in 8 NYCRR 100.2(y) in the future.