Decision No. 14,578

 

(May 31, 2001)

 

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the Wappingers Central School District ("respondent") that her grandson, N.B., is not a district resident. The appeal must be dismissed.

Petitioner resides in Fishkill, New York, within respondent's district. On October 4, 2000, petitioner sought to enroll her grandson in respondent's high school. In support of this request, she submitted a statement from the student's mother, L.H., who resides in Beacon, New York, within the Beacon City School District. The notarized statement asserted that the mother had given petitioner the right and obligation to make all educational and medical decisions that affected the student. Based upon this statement, respondent permitted petitioner's grandson to attend its high school commencing on October 5, 2000, and he attended the school until November 27, 2000 when he was suspended for disciplinary reasons.

On December 1, 2000, a superintendent"s hearing was held pursuant to Education Law "3214(3), and it was determined that the suspension would extend through February 7, 2001. During the period of suspension, the student was provided with tutoring.

By letter dated January 10, 2001, the district"s assistant superintendent for administration requested that petitioner and the student's mother complete questionnaires to determine the student's residency status. Respondent states that it commenced a residency inquiry because the student's mother made statements on the record at the disciplinary hearing that the district interpreted as meaning she retained parental control over her son. In a notarized response received by the district on January 24, 2001, the student's mother acknowledged that she had legal custody. She asserted that her son was living with petitioner because the city of Beacon was unsafe due to drug and gang activity, and that there was better educational opportunity in respondent's district. The student's mother stated that she was responsible for decisions regarding her son"s educational program and medical care, and that he was covered by his father"s medical insurance policy. She also acknowledged that she received child support from the student's father which she paid to petitioner for room and board. Petitioner also submitted an affidavit to the district which indicated that her grandson was living with her because she believed that Beacon was unsafe and to afford him better educational opportunities. She also asserted that while she was not responsible for the child"s medical care and decisions, she did share responsibility for decisions regarding his educational program with his mother. Petitioner also acknowledged that the student's mother paid her room and board.

By letter dated January 26, 2001, respondent's assistant superintendent for administration advised petitioner of the district"s determination that the student was not eligible to attend respondent's schools because he did not satisfy the residency requirements and advised her of the right to appeal that determination within the school district. In her appeal to the assistant superintendent dated January 31, 2001, petitioner reiterated the safety and educational reasons that allegedly caused her grandson to move from the Beacon City schools. She further stated that she and the student's mother had agreed that they would make all decisions regarding the student together after discussing their options. By letter dated February 2, 2001, respondent's assistant superintendent for instruction denied the appeal and advised petitioner of the procedure for taking an appeal to the Commissioner of Education. This appeal ensued. petitioner's request for interim relief was denied on March 21, 2001.

Petitioner asserts that her grandson is a resident of respondent's district and entitled to attend its schools without the payment of tuition. She alleges that respondent wrongfully pursued this residency investigation and determination because of the disciplinary action against her grandson and contends that the statements relied upon by respondent in denying her grandson residency status were in response to questions that were either vague or designed "to evoke a damning response." She argues that upholding respondent's residency determination would be against the interests of justice and unduly disruptive to the student who is classified as a special education child.

Respondent contends that the petition is untimely and asserts that petitioner has failed to rebut the presumption that the child resides with his mother in the Beacon City School District. Respondent asserts that the residency questions posed to petitioner and the student's mother were appropriate and that petitioner is simply dissatisfied with the implications of the answers that she gave. Further, respondent argues that petitioner's proper course of action was to file a request for an impartial hearing if she and the student's mother were dissatisfied with the individualized education program ("IEP") and placement recommended for the student by the Beacon City School District.

I will first address the procedural issue of timeliness. An appeal to the Commissioner of Education under Education Law "310 must be brought within 30 days of the act or decision complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner acknowledges that the last day to commence a timely appeal was March 5, 2001, and that this appeal was not commenced until two days later. She asks that I excuse the delay because inclement weather caused the closure of the school district on March 5 and March 6, 2001, and annexes documentation which appears to indicate that the district was closed. Respondent acknowledges that the schools of its district were closed on both days, but asserts that the administrative offices were open on March 5, 2001. In view of these circumstances, however, and there being no evidence of prejudice caused to respondent, I will excuse the delay in the interests of justice (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 476, Decision No. 14,287; See also, Appeal of a Student with a Disability, 39 id. 427, Decision No. 14,278).

Turning to the merits of the appeal, Education Law "3202(1) provides, in pertinent part:

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 Rosati, 38 id. 216, Decision No. 14,018).

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). 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). Where the facts of the situation contradict the claim of a complete transfer of custody, however, the presumption of residence with the student's parent is not rebutted (Appeal of Byrd, 38 Ed Dept Rep 561, Decision No. 14,093; Appeal of Galay, et al., 37 id. 128, Decision No. 13,821; Appeal of Simond, 36 id. 117, Decision No. 13,675).

The record in this matter indicates that the investigation and appeal process employed by respondent afforded petitioner the due process required for making a residency determination. petitioner's allegation that she was given the questionnaire without any explanation is not supported by the record because both the questionnaire and the cover letter sent with it indicate that the information was being requested for the purpose of making a residency determination. At the time of its request for information, respondent was under no obligation to inform petitioner or the student's mother of the legal standard that would be applied to its determination. While the questionnaire clearly intended to elicit answers relevant to the district"s residency determination, the questions do not require any specific response. I cannot, therefore, agree that the questions were designed "to evoke a damning response."

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (Appeal of Camille S., 39 Ed Dept Rep 574, Decision No. 14,316; Appeal of World Network International Services, Inc., 39 id. 30, Decision No. 14,164). Petitioner has failed to meet the burden of establishing a total transfer of parental control because the notarized statements that she and the student's mother submitted to the district indicate that a total transfer of custody and control did not occur. Specifically, the statements indicated that the student's mother continued to provide support and make medical and educational decisions for her son. Although petitioner alleges that respondent wrongfully commenced the residency investigation because of the disciplinary action, there is no stated basis for finding that the determination should therefore not be sustained. To the contrary the record of the disciplinary hearing indicates that the student's mother appeared on the student's behalf. Thus, it appears that the district had reason to question whether or not she had fully relinquished parental control.

Petitioner asserts that respondent's determination will be unduly disruptive to her grandson who is classified as a special education child. Petitioner correctly states that her grandson is entitled to a free appropriate public education ("FAPE"). However, a student is only entitled to a FAPE in the school district in which he or she resides. The record fails to provide a basis to find that respondent acted arbitrarily or capriciously in determining that petitioner's grandson is not a district resident.

It has come to my attention that by letter dated May 14, 2001, the Beacon City School District informed petitioner that it would not register her grandson because she represented that the student resided with her in the Wappingers Central School District and the student's mother had transferred custody and control to her. In its letter, the Beacon City School District further states that it would give consideration to enrolling the student if petitioner could submit proof that her grandson resides with his guardian in the Beacon City School District. In light of this decision and the unrebutted presumption that the student resides with his mother in the Beacon City School District for purposes of Education Law "3202(1), I am directing my Office of Counsel to send a copy of this decision to both the Beacon City School District and the student's mother. I am further directing that a copy be sent to the District Superintendent of Schools of Dutchess County and my Office of Special Education Services (OSES) and that the district superintendent and OSES facilitate the enrollment of this student as soon as possible.

 

THE APPEAL IS DISMISSED.

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