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Decision No. 14,436

Appeal of A STUDENT WITH A DISABILITY, by his grandmother, from action of the Board of Education of the Rye Neck Union Free School District regarding residency.

Decision No. 14,436

(August 14, 2000)

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Rye Neck Union Free School District ("respondent") that her grandson is not a resident of the district. The appeal must be dismissed.

Petitioner is a resident of 610/612 Third Street in Mamaroneck within respondent’s district and claims that her grandson, the student in this appeal, resides with her at that address. Petitioner’s grandson has apparently attended respondent’s schools and been classified as a student with a disability by respondent’s Committee on Special Education ("CSE") from 1993 through 1999.

As a result of ongoing concerns regarding the student’s residency status, district officials in November 1999, engaged a private investigator to determine the student’s residence. The investigator reported that on the morning of December 1, 1999 he watched petitioner’s home. He stated that he did not see the student leave from the 610/612 Third Street address, but later learned that he was in attendance in school that day. The investigator also advised respondent that he observed the student and his mother leave the mother’s residence at 160 East Fourth Street in Mount Vernon, which is outside respondent’s district, and travel to the parking area at the Rye Neck High School/Middle School on December 2, 3 and 6, 1999.

By letter dated December 16, 1999, Kimberly Bucci, respondent’s designated officer in charge of residency determinations, advised the student’s mother that the district had determined that her son was no longer a district resident and offered to meet with her to discuss this determination. On December 23, 1999, the student’s mother met with Ms. Bucci. She admitted that she was living in Mount Vernon, but asserted that her son was living with petitioner in Mamaroneck. She denied the investigator’s assertion that he saw her son leaving her apartment building outside respondent’s district on three school mornings.

By letter dated February 8, 2000, Ms. Bucci notified the student’s mother that her son was not a district resident and that he would be excluded from school as of February 18, 2000 unless she agreed to pay tuition in the amount of $9,000 per year. This appeal ensued. Petitioner’s request for interim relief was granted on March 13, 2000.

Petitioner asserts that she is the student’s grandmother and legal guardian and that he has lived with her for about thirteen years. She contends that she provides him with food, clothing and shelter and has total control of decisions about his health, welfare and education. She also states that the student’s mother has had to work two jobs since he was born and has been unable to give him the supervision he needs. Petitioner has submitted a copy of her petition for guardianship over the student, which was filed in Westchester County Surrogate’s Court on February 24, 2000.

Respondent contends that the student is living with his mother outside the district and is not entitled to attend district schools without the payment of tuition.

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 White, 39 Ed Dept Rep 103, Decision No. 14,186; Appeal of Brown, 38 id. 159, Decision No. 14,007; Appeal of Kehoe, 37 id. 14, Decision No. 13,792).

Respondent argues that the student lives with his mother in Mount Vernon and is using a false address to enable him to attend school in respondent’s district. The student’s mother admitted to school staff that she does not reside in the district. I note, however, that a private investigator’s statement that he observed the student at his mother’s residence outside the district on three school mornings is not sufficient to establish that he in fact lives there.

Nevertheless, a student's residence is presumed to be that of his or her parents or legal guardians (Appeal of White, supra; Appeal of Brown, supra; Appeal of Atallah, 36 Ed Dept Rep 78, Decision No. 13,663). 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 Brown, supra; Appeal of Mitchem, 37 Ed Dept Rep 231, Decision No. 13,849).

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioners have the burden of establishing the facts upon which they seek relief 8 NYCRR "275.10; Appeal of Lavelanet, 39 Ed Dept Rep 56, Decision No. 14,171). Petitioner has failed to meet that burden here. She has not rebutted the presumption that the student’s residence is with his mother outside respondent’s district because she has not shown that there has been a total and presumably permanent transfer of custody and control to her. She makes only conclusory allegations that she is responsible for her grandson’s care and upbringing. Moreover, the record demonstrates that the student’s mother has consistently attended his CSE meetings and retained control of decisions about his education.

Petitioner also submits her petition in Westchester County Surrogate’s Court for guardianship of her grandson. This petition undercuts petitioner’s claim that she already is the boy’s legal guardian. Moreover, it is dated February 24, 2000, shortly after respondent’s notice that the student would be excluded from school. The guardianship petition appears to have been initiated to circumvent respondent’s determination that the student is not a resident of the district. Additionally, there is no evidence in the record of a court order actually granting guardianship. Petitioner has failed to respond to my Office of Counsel’s request for information on the status of the guardianship proceeding.

Parents may not transfer legal guardianship of their children merely to achieve residence status for the children to take advantage of local schools (Appeal of White, supra; Appeal of Peykar, 38 Ed Dept Rep 141, Decision No. 14,003). Where, as in this case, the sole reason the student is claiming to reside with someone other than the parent is to take advantage of the schools of the district, the student has not established residence (Appeal of West, 36 Ed Dept Rep 76, Decision No. 13,662).

While the evidence submitted by respondent is not overwhelming, I find petitioner has failed to provide sufficient evidence to rebut the presumption that her grandson resides with his mother outside the district. Accordingly, respondent’s determination will not be set aside.