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Decision No. 14,787

Appeal of SONIA SANTIAGO, on behalf of PRISCILLA GALLARDO, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 14,787

(August 22, 2002)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that her niece, Priscilla, is not a district resident. The appeal must be dismissed.

Respondent"s administration initiated a surveillance of the Gallardo family after receiving an anonymous report that Priscilla and her brother Joseph lived in Roosevelt, outside respondent"s district. On March 12 and 13, 2002, an investigator observed the children leaving a residence in Roosevelt with their mother, who dropped them off at school in respondent"s district. By letter dated March 15, 2002, respondent"s director of pupil services ("director") notified Priscilla"s parents that he had determined she was not a district resident and would be excluded from respondent"s schools as of March 26, 2002. The director invited the parents to attend a meeting on March 25, 2002 to present evidence regarding Priscilla"s residency. Respondent did not seek to exclude Joseph because he was a senior and respondent permits seniors who become nonresidents to finish their final year at respondent"s schools.

Priscilla was further observed leaving the Roosevelt residence on March 19, 20 and 21, 2002. On March 25, 2002 Priscilla"s mother and petitioner met with the director. They advised him that Priscilla was living with petitioner in Baldwin, within respondent"s district. Priscilla"s mother submitted an affidavit stating that she transferred custody of Priscilla to petitioner and her husband due to "family problems and economical issues." Petitioner submitted an affidavit stating that Priscilla moved in with her on March 24, 2002 and intended to remain for an undetermined time. She also stated that she and her husband "will take control and custody of [the] child."

Respondent"s investigator continued surveillance and observed Priscilla"s mother leave her residence in Roosevelt, drive to petitioner"s residence in Baldwin, pick Priscilla up there and drop her off at school on a number of occasions. On May 1, 2002, Priscilla"s mother wrote a note to school seeking to excuse Priscilla"s absences on March 29 and 30. On April 26, 2002, Priscilla"s mother attended a conference with her guidance counselor and participated in choosing her courses for the following school year.

By letter dated May 16, 2002, the director notified Priscilla"s mother that he determined that she had not relinquished full care, custody and control of her daughter, and that Priscilla therefore was not a district resident. The letter further stated that Priscilla would be excluded from respondent"s schools as of May 23, 2002. This appeal ensued. Petitioner"s request for interim relief was granted on June 3, 2002.

Petitioner alleges that Priscilla"s residence in Roosevelt was temporary and that she now resides with petitioner in Baldwin. Petitioner also alleges that she has full custody and control of Priscilla and that neither of Priscilla"s parents is able to care for her. Petitioner asserts that she permits Priscilla"s mother to drive her to school and that Priscilla"s mother will no longer be responsible for writing excuses for Priscilla"s absences. She also states that Priscilla"s mother attended a conference with the guidance counselor at her daughter"s request and contends that school staff should not have permitted her to attend because she was no longer Priscilla"s guardian.

Respondent argues that the residency determination was not arbitrary or capricious. Respondent asserts that Priscilla moved in with petitioner when she learned her residency was being questioned and that custody was transferred in an attempt to take advantage of respondent"s schools. Respondent further argues that Priscilla"s mother has taken various actions that demonstrate that she has not relinquished custody and control of her daughter.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Brown, 42 Ed Dept Rep ____, Decision No. 14,760; Appeal of Pierre, 40 id. 538, Decision No. 14,551; Appeal of Epps 39 id. 778, Decision No. 14,377).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brown, supra; Appeal of James, 41 Ed Dept Rep ____, Decision No. 14,752; Appeal of Santana, 40 id. 57, Decision No. 14,420). 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 L.W., 41 Ed Dept Rep ____, Decision No. 14,717; Appeal of Boyd, 41 id. ____, Decision No. 14,682). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court, 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 L.W., supra; Appeal of James, supra).

Petitioner has failed to make this showing. Priscilla"s mother continues to make decisions about her daughter"s education. This was demonstrated by her participation at the meeting with the guidance counselor to plan for Priscilla"s future and select her courses for the following school year. Petitioner makes conclusory allegations that she supports Priscilla and provides all of her food, shelter and clothing, but does not support these claims with any evidence other than a single phone bill.

Moreover, where the sole reason a 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 Malek, 41 Ed Dept Rep ____, Decision No. 14,697; Appeal of L.W., supra). Petitioner acknowledges that Priscilla moved in with her after her parents received notice that respondent questioned her residence, and just one day before the scheduled meeting with the director. She does not support her allegation that family problems necessitated the move or explain why Priscilla"s siblings remain in the Roosevelt residence with their mother. On the record before me, I cannot find that respondent"s determination that Priscilla moved in with petitioner to take advantage of respondent"s schools is arbitrary or capricious.