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Decision No. 14,427

Appeal of P.L., on behalf of S.L. and J.L., from action of the Board of Education of the Lawrence Union Free School District regarding residency.

Decision No. 14,427

(August 4, 2000)

Long Island Advocacy Center, attorneys for petitioner, Deborah R. Monheit, Esq., of counsel

Minerva & D'Agostino, P.C., attorneys for respondent, Doreen Levinson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lawrence Union Free School District ("respondent") that her nieces, S.L. and J.L., are not residents of respondent's district. The appeal must be dismissed.

Petitioner resides outside of respondent's school district in Rosedale, Queens. She is S.L.'s and J.L.'s aunt. It is undisputed that S.L and J.L. reside with petitioner in Rosedale. On November 16, 1998, the Family Court of the State of New York, Nassau County, issued an order awarding petitioner temporary custody of S.L. and J.L. The order placed the family under the temporary supervision of the Department of Social Services. On that same date, the Family Court issued a temporary order of protection, effective until May 13, 1999, requiring the girls’ father to stay away from them.

At the time this appeal was commenced in the 1999-2000 school year, S.L. was an eighth grade student and J.L. was in the seventh grade. S.L. has attended respondent's schools since she was ten years old and J.L. since she was nine years old. Petitioner states that the girls' mother resided within the district until February 1999, when she became homeless. The girls' mother is now residing in a homeless shelter in Westbury, Nassau County, which is outside of respondent's district. The girls' father was incarcerated in the Nassau County jail at the time this appeal was commenced. There is no evidence in the record that he resides in respondent's district.

On June 15, 1999, Dr. Mark Kavarsky, the principal of respondent's middle school, advised petitioner that proof of residency for S.L. and J.L. would be needed for them to continue in the district's schools in the following school year. In September 1999, Robert Pape, respondent's supervisor of transportation and designee for residency determinations, advised petitioner that he was reviewing the residency status of S.L and J.L. and afforded petitioner the opportunity to submit information concerning the girls' purported right to attend school within the district. Petitioner submitted the order of the Family Court awarding her temporary custody of S.L. and J.L. and the temporary restraining order against the girls' father. On September 20, 1999, Mr. Pape found that S.L. and J.L. were not district residents and would be excluded from attending the district's schools, effective October 15, 1999. This appeal ensued.

Petitioner requested a stay of respondent's determination pending a final decision in her appeal. Respondent subsequently indicated that it did not object to the imposition of a stay until the end of the 1999-2000 school year. On February 28, 2000, I issued the stay, permitting S.L. and J.L. to remain in respondent's schools, pending an ultimate decision in this matter.

Petitioner contends that S.L. and J.L. should be permitted to remain in respondent's schools so that the girls may remain with their friends, because respondent's schools provide the only stable environment in the girls' lives, and because she hopes that the girls' mother will regain custody and be able to reside with S.L. and J.L. within the boundaries of the district.

Respondent contends that the legal residence of S.L. and J.L. is with petitioner in Rosedale, outside the boundaries of respondent's district; that S.L. and J.L. are not eligible to attend its schools as homeless children; and that the need for stability and to maintain friendships is not a sufficient basis for permitting a student who resides outside the district 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 the 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 Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Simond, supra). However, this presumption may be rebutted in a proper case (Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465; Appeal of McMullan, 29 id. 310, Decision No. 12,304). To rebut the presumption, 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 Young and Billings, supra; Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of Garretson, 31 id. 542, Decision No. 12,729).

Furthermore, where a court has issued letters of guardianship to an adult residing within a given district, the ward is presumed to reside in that school district (Appeal of Bogetti, supra; Appeal of Gilbert, 37 Ed Dept Rep 43, Decision No. 13,798; Appeal of Britton, 33 id. 120, Decision No. 12,995). The presumption of a ward's residence can be rebutted if, for example, it can be shown that the guardianship was established merely for the purpose of achieving residence status to take advantage of the local schools (Appeal of Bogetti, supra; Appeal of Gilbert, supra; Appeal of Pinto, 30 Ed Dept Rep 374, Decision No. 12,499).

Petitioner has legal custody of S.L. and J.L., and the girls reside with her outside of respondent's district. There is no evidence in the record that either of the girls' parents reside in respondent's district.

There is insufficient evidence in the record to support petitioner's contention that the girls are living temporarily outside of respondent's district. Petitioner bases this contention on a hope that the mother will regain custody of the girls and return to respondent's district with them to reside. However, other than stating this hope, petitioner does not establish in the record that the girls' mother intends to obtain another residence in respondent's district or has taken any steps to obtain such a residence. In addition, there is no evidence in the record that either of the girls' parents have maintained significant community ties within respondent's district, other than their daughters' continued attendance in respondent's schools. Therefore, I am unable to conclude on the record before me that the girls are temporarily residing outside the district and that their parents are actively taking steps to return there (Appeal of Gannon, 37 Ed Dept Rep 135, Decision No. 13,823; Appeal of Helms, 36 id. 95, Decision No. 13,668; Appeal of Kenneth R., 30 id. 297, Decision No. 12,471).

Although I am sympathetic to petitioner's contention that all of the girls' friends attend respondent's schools and that such schools provided the girls with a stable environment in their lives, these facts do not provide a sufficient legal basis for overturning respondent's residency determination (Appeal of Lokkeberg, 38 Ed Dept Rep 134, Decision No. 14,001; Appeal of Mueller, 37 id. 145, Decision No. 13,827).

Finally, on the record before me, I do not find that the girls have a right to attend respondent's schools as homeless children. Petitioner was awarded temporary custody of S.L. and J.L. by a court order issued on November 16, 1998, prior to the girls' mother becoming homeless in February 1999. The Regulations of the Commissioner of Education define a homeless child as:

(a) a child who lacks a fixed, regular, and adequate nighttime residence; or

(b) a child who has a primary nighttime location that is:

(1) a supervised, publicly or privately operated shelter designated to provide temporary living accommodations . . . ; or

(2) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings. (8 NYCRR "100.2[x][1]).

S.L. and J.L. do not fit this definition. They have a fixed, regular nighttime residence with petitioner, and there is no contention that such residence is inadequate.

The record before me provides no basis to find that respondent acted arbitrarily in determining that S.L. and J.L. are not district residents.