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Decision No. 14,551

Appeal of MARGARETTE D. PIERRE, on behalf of MARC E. DESIR, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,551

(March 28, 2001)

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that her nephew, Marc E. Desir, is not a district resident. The appeal must be dismissed.

Petitioner resides within respondent"s district at 31 Sussex Road, Elmont, New York. On or about January 20, 2000, petitioner"s sister, Erla Desir, moved with her four children from their residence in Hudson, New York to petitioner"s residence in Elmont with the intention of residing there temporarily. On or about February 1, 2000, Ms. Desir enrolled her son Marc in respondent"s district, listing petitioner"s residence as her address. Within a week of Marc"s enrollment, Ms. Desir moved to Pennsylvania with Marc"s three siblings to pursue employment opportunities. Petitioner indicated that Ms. Desir did not take Marc with her to Pennsylvania because she did not want to disrupt his education.

After moving to Pennsylvania, Ms. Desir completed a second enrollment form for respondent"s district listing petitioner as Marc"s guardian. The form stated that 100 percent of Marc"s financial support would be provided by his parents. In conjunction with the second enrollment form, Ms. Desir also completed a parent's affidavit purporting to relinquish custody and control of Marc to petitioner, and designating her as Marc"s custodian. Within that affidavit, Ms. Desir indicated that Marc"s living arrangement with petitioner would continue only until the end of the school year.

By letter dated March 21, 2000, Ms. Desir was advised by the district"s Administrative Assistant to the Superintendent, Frederick Raulli, that the district had determined that Marc was not a district resident and was, therefore, ineligible to attend respondent"s school. The letter further advised Ms. Desir that Marc would be excluded from attendance in respondent's schools effective April 4, 2000.

On March 29, 2000 a residency review was conducted by respondent"s Administrative Review Officer, William Niles. During the course of that review, petitioner indicated that Marc was living with her temporarily and that at the end of the school year he would return to his mother in Pennsylvania. At the time of the review, petitioner was paying for Marc"s living expenses; however, it was petitioner"s expectation that once Ms. Desir became employed, she would send petitioner money for Marc"s support. Petitioner further indicated that although she made "day to day" decisions concerning Marc's welfare without consulting Ms. Desir, decision-making responsibility for matters of a more serious nature would be shared by herself and Ms. Desir. Based upon the information obtained during the residency review, Mr. Niles determined that Marc was not a district resident and as such was ineligible to attend school within respondent"s district. Petitioner was notified of this determination by letter dated June 16, 2000 and was advised that Marc would be excluded from attendance in respondent"s school effective June 23, 2000.

Petitioner seeks a determination allowing Marc to attend school in respondent"s district. Respondent contends that Marc is not a district resident and asserts that the appeal must be dismissed on procedural grounds as well as on the merits. Petitioner"s request for interim relief was denied on September 12, 2000.

This appeal must be dismissed as untimely. An appeal to the Commissioner must be brought within 30 days from the making of the decision or performance of the act complained of unless excused by the Commissioner for good cause (8 NYCRR 275.16; Appeal of Davis, 39 Ed Dept Rep 181, Decision No. 14,207; Appeal of McCall, 35 id. 38, Decision No. 13,456). Although respondent"s administrative review officer notified petitioner of his determination that Marc was not a district resident by letter dated June 16, 2000, petitioner did not commence the appeal until September 8, 2000. In light of petitioner"s delay in commencing the appeal and failure to provide a basis for excusing the delay, 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 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 guardians (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appealof Bogetti, 38 id. 199, Decision No. 14,014; Appeal ofCortes, 37 id. 114, Decision No. 13,818). 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 Murphy, 37 id. 162, Decision No. 13,831). 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 Juarez, supra; Appeal of Gorrasi, 35 Ed Dept Rep 68, Decision No. 13,467). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child"s residence remains with the parent (Appeal of Bogetti, supra; Appeal of a Student with a Disability, 37 Ed Dept Rep 173, Decision No. 13,833). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate"s Court (Appeal of Epps, supra; Appeal of Tunstall, 27 id. 144, Decision No. 11,899), it is necessary to demonstrate that a particular location is a child"s permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child"s support and custody (Appeal of Epps, supra; Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729; Appeal of Pernell, 30 id. 380, Decision No. 12,502).

Moreover, where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Burdi, 39 Ed Dept Rep 176, Decision No. 14,206; Appeal of Cron, 38 id. 149, Decision No. 14,005; Appeal of a Student with a Disability, supra).

In this case, the purported transfer of Marc's custody and control to petitioner was neither total nor permanent. Ms. Desir and petitioner both indicated that Marc's living arrangement with petitioner was temporary and was to continue only until the end of the school year. Although Ms. Desir completed an affidavit purporting to relinquish custody and control of Marc to petitioner and designating her as Marc"s custodian, Ms. Desir intended to retain financial responsibility for Marc and continued to be involved in decisions regarding his welfare. Moreover, petitioner stated that Marc would return to Ms. Desir if he was not eligible to attend school within respondent"s district. The temporary nature of the living arrangement and illusory transfer of custody are not consistent with establishing residency, but rather are indicative of an attempt to take advantage of the schools within respondent's district. Accordingly, I do not find respondent's decision to deny Marc admission to its schools to be arbitrary, capricious or unreasonable.

In light of this disposition, I need not address the parties" remaining contentions.