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Decision No. 14,926

Appeal of a STUDENT WITH A DISABILITY, by his sister, from action of CARMEN FARINA, individually and in her official capacity as Superintendent of Community School District 15, Judith Gerstman, individually and in her official capacity as the Director of Student Support Services of Community School District 15, and from the Board of Education of the City School District of the City of New York regarding residency.



(August 13, 2003)


Regina Skyer & Associates, attorneys for petitioner, Deusdedi Merced, Esq., of counsel


Michael A. Cardozo, Corporation Counsel, attorney for respondent, Nancy Jane Botta, Esq., of counsel



CATE, Acting Commissioner.--Petitioner appeals the determination of Community School District 15 ("CSD 15") of the City School District of the City of New York that her brother, Drew, is not a resident of the City of New York.  The appeal must be dismissed.

Petitioner"s brother is nine years old and attended the Mary McDowell Center for Learning ("MMCL") in Brooklyn during the 2002-2003 school year while living with petitioner.  By letter dated July 8, 2002, petitioner informed the Committee on Special Education ("CSE") for CSD 15 that her brother had recently moved from Dallas, Texas where he was determined to have a learning disability and speech impairment, and would require transportation from her Washington Heights address to the MMCL, as well as tuition reimbursement.  Payment checks were issued to MMCL in monthly installments from July 2002 through December 2002 from a joint bank account held by petitioner and the student"s mother.

In the summer of 2002, the CSE evaluated the student after obtaining the written consent on August 1, 2002 of his mother who was employed by the United Nations and living outside the United States, in Switzerland.  On August 1, 2002, the student"s mother informed a CSE social worker that her son wanted to live in the United States with petitioner, his 25-year-old sister.  On September 19, 2002, the student"s mother executed a revocable "Specific Power of Attorney" authorizing petitioner to act as her "legal representative and agent in exercising responsibilities for and authority over said child in all matters pertaining to all aspects of his education...." However, on September 25, 2002, his mother attended and participated in a meeting of the CSE to develop an Individualized Education Program ("IEP") for the student.  The CSE recommended a classification of learning disabled and a program in a special class in a community school with a class ratio of 12:1, group counseling, and group speech and language therapy at Public School 192.

By letter dated November 22, 2002, the superintendent of CSD 15 notified the student"s mother that there was insufficient proof of her son"s residency within the district, and that, accordingly, he was not entitled to receive services on a tuition-free basis.  The letter also invited the student"s mother to submit any additional proof of residency.  By letter dated December 4, 2002, petitioner"s counsel submitted the "Specific Power of Attorney" and a divorce judgment filed on March 20, 1995, granting the student"s mother sole custody.  On January 3, 2003, a meeting regarding the student"s residency was held at CSD 15 with petitioner.  A determination was rendered on January 15, 2003 that the student was not a resident because his mother had not relinquished custody to petitioner, his current living situation was not permanent, and the primary purpose for living with petitioner was to attend school in New York City.  Petitioner commenced this appeal.

Petitioner seeks an order annulling the residency determination and contends that she is in the process of filing for guardianship of her brother in Family Court, that his living arrangement is permanent, that she has sole financial responsibility for her brother"s food, clothing and shelter, and that her brother is living with her to provide him with a stable home.  Petitioner contends that her mother contributes money into their joint bank account to pay for her brother"s tuition at MMCL but does not contribute toward his food, clothing and shelter.  Petitioner contends that the residency determination denies her brother his constitutional right to travel as protected by the privileges and immunities and equal protection clauses of the Fourteenth Amendment to the United States Constitution.  Petitioner also contends that her brother intends to remain in New York City and that his actual and only residence is with petitioner inside the district.

Respondents deny that the determination or the New York State Education Law violates the United States Constitution.  Respondents contend that the student is presumed to reside with his parents, neither of whom is a resident of New York, and that his mother did not relinquish custody and control by executing the "Specific Power of Attorney."  Respondents contend that the student"s mother consented to the CSE evaluation of her son on August 1, 2002 and participated in the September 25, 2002 IEP meeting, demonstrating custody and control.  Respondents also contend that the student"s mother continues to provide financial support for his tuition at MMCL and that petitioner withdrew a petition in Family Court to obtain custody of her brother.  Respondents further contend that the sole basis for the student moving from Dallas, Texas where he was living with his father, was to attend school in New York City.

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 residency 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 Mario D., 41 Ed Dept Rep 24, Decision No. 14,600; Appeal of Davis, 39 id. 181, Decision No. 14,207; 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 Hutchinson, 42 Ed Dept Rep ___, Decision No. 14,865; Appeal of Vazquez, 42 id. ___, Decision No. 14,841; Appeal of L.W., 41 id. 372, Decision No. 14,717).  This presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing within the district (Appeal of Maxwell, 42 Ed Dept Rep ___, Decision No. 14,799).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child"s permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child"s support and custody (Appeal of Hutchinson, supra).

     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 Hutchinson, supra; Appeal of Maxwell, supra; Appeal of Lapidus, 40 Ed Dept Rep 21, Decision No. 14,408).

     In this case, petitioner has failed to demonstrate that respondents acted arbitrarily or capriciously in determining that her brother is not a district resident.  First, the student"s mother consented to his CSE evaluation and participated in his 2002 IEP meeting as his custodial parent.  Second, petitioner admits that his mother contributes financially to the student"s tuition.  Third, petitioner claims to have petitioned Family Court, but admits that she has not obtained an order transferring custody of her brother from his mother, who is his sole legal custodian pursuant to her March 20, 1995 divorce judgment.  In addition, petitioner does not deny respondent"s claim that she withdrew her Family Court petition.  While petitioner produced the September 19, 2002 "Specific Power of Attorney," that document alone is not sufficient to transfer permanent custody and control of her brother.  Therefore, since there is no evidence in the record of a complete or permanent transfer of custody, respondent"s determination will not be set aside (Appeal of Santana, 40 Ed Dept Rep 57, Decision No. 14,420; Appeal of Noble-Silverberg, 38 id. 213, Decision No. 14,017).

     While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission on her brother"s behalf at any time should the circumstances presented in the record of this appeal change (Appeal of Santoianni, 40 Ed Dept Rep 237, Decision No. 14,470; Appeal of D.F., 39 id. 106, Decision No. 14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180).

     I have considered the parties remaining contentions and find them without merit.