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Decision No. 14,600

Appeal of MARIO D., on behalf of STEVEN B., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,600

(July 20, 2001)

Douglas E. Libby and Bernadette Gallagher-Gaffney, Esqs., attorneys for respondent

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

Petitioner is Steven's uncle and resides within respondent"s district. Steven"s mother resides with Steven"s grandmother outside of respondent"s district and is undergoing medical treatment on an outpatient basis. Petitioner alleges that Steven lives with him, rather than Steven"s mother because her illness has rendered her unable to provide for Steven's care. Petitioner claims that Steven"s mother has given him temporary custody over Steven. Petitioner further asserts that he and Steven"s grandmother are responsible for providing food and clothing for Steven and exercise control over Steven"s activities and behavior. Petitioner seeks a determination that Steven is a district resident. Petitioner"s request for interim relief was granted on October 19, 2000.

Respondent contends that Steven does not reside within the district and maintains that the appeal must be dismissed on procedural grounds and on the merits.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Davis, 39 Ed Dept Rep 181, Decision No. 14,207; Appeal of Gentile, 39 id. 23, Decision No. 14,161). In the instant matter, respondent notified petitioner of its determination regarding Steven"s residency on August 29, 2000 and petitioner received such letter on August 30, 2000. It appears from the record that petitioner did not properly commence this appeal until October 5, 2000, more than 30 days after respondent's final determination. Petitioner has offered no excuse for his delay. Accordingly, 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 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 Davis, supra; Appeal of Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926).

A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Cortes, 37 id. 114, Decision No. 13,818; Appeal of Simond, 36 id. 117, Decision No. 13,675). However, this presumption may be rebutted (Appeal of Davis, supra; Appeal of Brown, 38 Ed Dept Rep 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 a determination that there has been a total and permanent transfer of custody and control to someone residing within the district (Appeal of Davis, supra; Appeal of Gorrasi, 35 Ed Dept Rep 68, Decision No. 13,467; Appeal of Mullen, 35 id. 43, Decision No. 13,459).

In this case, the transfer of Steven"s custody and control to petitioner was neither total nor permanent. By his own admission, petitioner acknowledges that Steven"s mother "has not surrendered parental control over Steven " to Mario but because of her present mental condition she has given Mario temporary custody." The letter submitted by Steven"s mother does not indicate any relinquishment of custody or control over Steven, but merely states that Steven lives with her brother. Petitioner also acknowledges that Steven intends to reside with him "for as long as it takes for his mother to recover a bit from her health problems." Because petitioner has not established that there has been a total and permanent transfer of custody of Steven to petitioner, I do not find respondent"s determination to be arbitrary, capricious or unreasonable (Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653).

In view of the foregoing, I am constrained to dismiss the appeal. I note, however, that should the circumstances presented in this appeal change, Steven has the right to reapply for admission to respondent's district.