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Decision No. 14,210

Appeal of BARBARA PERCIBALLI, on behalf of EDWARD E. and NICHOLAS E. PERCIBALLI, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,210

(September 14, 1999)

Stone and Brantman, attorneys for petitioner, Burton W. Stone, Esq., of counsel

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that her sons, Edward and Nicholas, are not district residents. The appeal must be dismissed.

Until September 1998, Edward and Nicholas lived with their parents in Elmont, within respondent's district. On September 23, 1998, petitioner and her husband moved to Levittown, outside respondent's district. Edward and Nicholas, then respectively a junior and a senior attending Elmont Memorial High School ("EMHS"), refused to move to Levittown with their parents. They continued to live at the parents' former rented house in Elmont.

In November 1998 the district learned that petitioner and her husband had moved to Levittown, and advised petitioner by letter dated November 20, 1998 that the boys were no longer entitled to attend the district's schools. The letter further advised that the boys would be excluded from EMHS effective December 8, 1998.

Petitioner appealed this determination, and respondent held an administrative review hearing on December 17, 1998. At the hearing, petitioner testified that she and her husband had moved to Levittown but their sons had elected to remain in the Elmont home by themselves, although petitioner would like them to live with her in Levittown. She stated that she gave the boys money occasionally and provided their medical coverage. Until just prior to the review hearing, petitioner had continued to pay the bills on the Elmont home.

In a decision dated January 6, 1999, the administrative review officer affirmed the initial nonresidency determination. The review officer found that the boys were presumed to live with their parents outside the district, and there was no bona fide relinquishment of care, custody and control to a person living within the district. The decision stated that Nicholas and Edward would be excluded from EMHS effective January 27, 1999.

Giovanni Perciballi, the boys' grandfather, submitted registration applications for the boys on January 25, 1999. Mr. Perciballi indicated that he was a "person in parental relationship" to both Nicholas and Edward, and signed the forms as "guardian." The registration forms indicated that the boys would now be living with their grandfather in Elmont, who would provide room and board as well as adult supervision and a home environment, but that the parents would continue to provide medical and dental coverage, and clothing. Petitioner remained responsible for all educational matters. The district determined by letter dated January 26, 1999 that the boys were not residents of the district.

The Perciballis appealed the determination, and a second residency review was conducted on January 29, 1999. At this hearing, petitioner testified that Nicholas and Edward would be living with their grandfather. She further stated she was in the process of transferring guardianship of the boys to their grandfather, and guardianship petitions had been filed in Surrogate's Court on or about January 21, 1999. Petitioner's counsel advised the review officer that there was a personal situation involved, and the boys had withdrawn from any type of supervision and control by the parents. Petitioner stated that no other circumstances had changed since the first review hearing.

The review officer issued a determination on February 5, 1999, finding that Nicholas and Edward were not entitled to attend the district's schools. The review officer noted that the evidence clearly showed that the parents were providing financial support for the boys, and their mother was still responsible for educational matters. As there was no showing of a total, permanent transfer of custody and control, the presumption that they resided with their parents had not been rebutted. This appeal ensued. A request for interim relief was denied on February 12, 1999.

During the pendency of this appeal, Edward submitted an affidavit in which he stated personal, family-related reasons for wanting to live with his grandfather. This specific information had not been provided in the previous administrative hearings, other than a nonspecific reference to a "personal situation." The Surrogate’s Court also issued guardianship letters for Edward to Giovanni Perciballi on June 29, 1999.

In deference to the newly issued guardianship letters, respondent authorized Edward’s admission to respondent’s summer school program pending review of the guardian’s new application to readmit Edward to respondent’s schools. An administrative hearing was held on August 20, 1999, and the review officer concluded that Edward was a resident of respondent’s district and should be readmitted to Elmont Memorial High School. Petitioner submitted an affidavit relinquishing care and custody of Edward to Giovanni Perciballi, who acknowledged that he would take responsibility for every matter concerning Edward, including all financial, pedagogical and other school-related matters.

As Edward has been admitted to respondent’s schools as a resident, this appeal is now moot as to him. As to Nicholas, the record indicates that he completed the requirements for a high school diploma on August 13, 1999 in the district's summer school program. Accordingly, the appeal is also moot with respect to Nicholas.

Although I am dismissing this appeal as moot, I am compelled to comment on the merits. Based on the record before me, I cannot conclude that respondent's initial determinations were unreasonable. Until Edward submitted additional information, the guardianship relationship was established, and petitioner relinquished parental control to the guardian, petitioner had failed to establish that there had been a total, permanent transfer of custody of Nicholas and Edward to Giovanni Perciballi (Appeal of S.V., 38 Ed Dept Rep 478, Decision No. 14,075; Appeal of Brown, 38 id. 159, Decision No. 14,007; Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729), and had failed to rebut the presumption that the students' residence was with their parents in Levittown (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). The record is clear that the parents had continued to provide medical coverage and some financial support for the boys, and according to the applications submitted to respondent, petitioner continued to exercise all control over educational matters. Respondent’s prior determinations of nonresidency were thus not arbitrary or unreasonable, and its August 20, 1999 determination that Edward is a resident of the district reflects the very different factual scenario presented to respondent at the third administrative hearing.

On the basis of the foregoing disposition, I need not address the other issues raised by the parties.