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Decision No. 14,470

Appeal of ROSANNE SANTOIANNI, MICHAEL SANTOIANNI and TINA SANTOIANNI, on behalf of MICHAEL J. SANTOIANNI, from action of the Board of Education of the Eastchester Union Free School District regarding residency.

Decision No. 14,470

(September 27, 2000)

Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Eastchester Union Free School District ("respondent") that Michael J. Santoianni is not a resident of the district and, therefore, is not entitled to attend its public schools. The appeal must be dismissed.

Petitioners Rosanne and Michael Santoianni are the parents of Michael J. Santoianni. In 1989, Michael’s parents divorced and custody was awarded to his mother, although the parents retained joint decision-making authority in matters of health, religion and education.

In September 1993, Rosanne Santoianni provided respondent with a handwritten letter indicating that she had transferred guardianship to Michael’s paternal grandmother, Tina Santoianni, who resided at 820 White Plains Road, within respondent’s school district. Thereafter, in June 1998, Michael went to live with his maternal grandmother, Donna Mottola, at 118 Gaylor Road, within respondent’s school district. In their petition, petitioners assert that Michael's mother, Rosanne Santoianni, and grandmother, Donna Mottola, make all decisions regarding Michael’s care, custody, control, health and education.

By letter dated June 6, 2000, the district’s director of pupil personnel, Amy Goodman, notified Michael’s mother, Rosanne, that, based upon surveillance conducted on behalf of respondent, she had determined that Michael was not a district resident but, instead, resided with Rosanne at 2035 Central Park Avenue in Yonkers. Respondent provided Rosanne an opportunity, pursuant to 8 NYCRR "100.2(y), to submit documentation regarding her son’s residence. In response to the letter, petitioners Michael and Tina Santoianni contacted Ms. Goodman and informed her that Michael lived with his maternal grandmother, Donna Mottola, at 118 Gaylor Road. Petitioners did not submit any further evidence to respondent. By letter dated June 13, 2000, Ms. Goodman determined that, based on the information before her, Michael was not a resident of respondent’s district. This appeal ensued.

Petitioners’ assert that Michael has resided in respondent’s school district since 1993; first with his paternal grandmother, Tina Santoianni, at 820 White Plains Road, and later with his maternal grandmother, Donna Mottola, at 118 Gaylor Road. Petitioners further assert that Michael's mother, Rosanne Santoianni, also resides at 118 Gaylor Road.

Respondent asserts that, despite its letter of June 6, 2000, petitioners submitted no evidence establishing Michael’s residence in its school district. Respondent contends that, based on its surveillance report, its June 13, 2000 determination that Michael J. Santoianni is not a district resident is in all respects proper.

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.

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 Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. ___, Decision No. 14,377; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

A child’s residence is presumed to be that of his or her parents or legal guardian (Appeal of Davis, 39 Ed Dept Rep 181, Decision No. 14,207; Appeal of Bogetti, 38 id. 199, Decision No. 14,014). However, this presumption may be rebutted (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Brown, 38 id. 159, Decision No. 14,007; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). To determine whether the presumption has been rebutted, certain factors are relevant, including that there has been a total and presumably permanent transfer of custody and control to someone residing in the district (Appeal of Perciballi, 39 Ed Dept Rep 190, Decision No. 14,210; Appeal of Bogetti, supra; Appeal of Davis, supra). Where the parent continues to exercise custody and control of the child, the presumption is not rebutted and the child’s residence remains with the parent (Appeal of Perciballi, supra; Appeal of Bogetti, supra; Appeal of a Student with a Disability, 37 Ed Dept Rep 173, Decision No. 13,833).

To establish Michael’s residence in respondent’s district, petitioners rely, in part, on an alleged transfer of guardianship in 1993 to petitioner Tina Santoianni, the student’s paternal grandmother. However, the record indicates that the handwritten transfer of guardianship did not effect a total permanent transfer of Michael's custody and control to Tina Santoianni. First, I note that Michael no longer lives with Tina Santoianni, nor has he lived with her since 1998. Moreover, Rosanne Santoianni asserts in the petition that she and Michael’s maternal grandmother, Donna Mottola, "make all decisions regarding the child’s care, custody, control, health and education." In addition, the record indicates that, throughout Michael’s attendance in respondent’s schools, his parents attended Michael’s school conferences, approved educational support services for Michael, received and signed his academic progress reports. Michael’s parents are listed as the primary contacts on the district’s 1999 Emergency Information Card, and Rosanne Santoianni signed as "parent or guardian" authorizing district staff to contact Michael’s physician in case of accident or serious illness. Therefore, I find no total and permanent transfer of custody and control of Michael ever took place. Petitioners, thus, failed to rebut the presumption that Michael’s residence is that of his mother.

At the time of respondent’s June 13 determination, petitioners had submitted no documentation to establish that Michael or his mother resided in respondent’s school district. Petitioners merely provided an oral statement to the district’s director of pupil personnel that Michael lived with Donna Mottola, his maternal grandmother, at 118 Gaylor Road. Respondent’s determination that Rosanne Santoianni and her son resided outside its district was based, in part, upon a surveillance report indicating that on five separate dates, from November 1999 to June 2000, Michael and his mother were observed leaving 2035 Central Park Avenue at 7:30 a.m. and driving to Eastchester Middle School where Michael attends school. Thus, respondent’s determination on June 13, 2000 that Rosanne Santoianni and Michael Santoianni were not district residents was reasonable based on the information then before it.

In this appeal petitioners submit for the first time copies of Rosanne Santoianni's driver's license, bank statement, social security statement and certificate of jury service, indicating her address as 118 Gaylor Road. However, I note that two of the four documents are dated subsequent to respondent’s June 13, 2000 determination. Moreover, a verified statement submitted by Michael Santoianni, the student's father, indicates that, although his son had been living with his grandmothers, Rosanne Santoianni resided at the 2035 Central Park Avenue address in Yonkers until June 2000. The statement indicates that she then moved to 118 Gaylor Road with her mother. The statement further indicates that petitioners Michael and Rosanne Santoianni are now selling the Yonkers property.

In view of petitioner's admission herein that Rosanne Santoianni did not move to respondent's school district until June 2000; the information provided in the surveillance report; and the equivocal documentation provided by petitioners, I find no basis on which to overturn respondent’s June 13, 2000 determination. While the appeal must be dismissed for the above reasons, I note that petitioners retain the right to reapply to the district for admission on Michael’s behalf at any time (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180; Appeal of Smith, 39 id. 28, Decision No. 14,163) to present any new information for respondent's consideration.