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Decision No. 14,949

Appeal of O.W., on behalf of J.H. and A.H., from action of the Board of Education of the Southampton Union Free School District regarding residency.



(August 29, 2003)


Guercio & Guercio, Esqs., attorneys for respondent, Jennifer L. Guercio, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Southampton Union Free School District ("respondent") that her grandchildren, J.H. and A.H., are not district residents.  The appeal must be dismissed.

Petitioner resides on Windward Way within respondent"s district.  During the 2002-2003 school year, J.H. and A.H. attended school in respondent"s district, based on their purported residency at the Windward Way address.  In December 2002, respondent commenced an investigation of J.H. and A.H."s residency, including surveillance.  The surveillance report indicated that J.H. and A.H."s mother, S.W., petitioner"s daughter, lived on Flanders Road in the Riverhead Union Free School District ("Riverhead").  On three occasions petitioner"s daughter was observed leaving the Flanders Road residence in the morning with the children.  The children were dropped at a bus stop in respondent"s district where they boarded a school bus to respondent"s elementary school.

By letter dated January 24, 2003, respondent"s assistant superintendent for business notified S.W. that a meeting to determine the children"s residency was scheduled for February 12, 2003.  S.W. was further notified of her right to present information regarding the children"s residency.

S.W. attended the February 12 residency hearing, but petitioner did not.  At the meeting, S.W. admitted she lived on Flanders Road in Riverhead.  Prior to the hearing, S.W. submitted a custodial affidavit dated February 6, 2003, signed by petitioner, stating that S.W. resided at Flanders Road and that the reason the children lived with petitioner was "landlord sold house.  Parents work in Southampton."  According to an affidavit submitted herein by the assistant superintendent, when questioned at the February 12 meeting as to why she was observed leaving the Flanders Road address with her children and dropping them at a bus stop in respondent"s district, S.W. claimed the observation was inaccurate but offered no plausible explanation.  Additionally, the assistant superintendent states that when asked whether the children"s guardianship was being transferred so they could continue to attend school in Southampton, S.W. "responded in the affirmative."  S.W. further indicated that she did not want her children to go to school in Riverhead because she and the children"s father work and there would be no one home at the end of the school day.  At the hearing S.W. indicated that she was responsible financially for the children as well as for making medical decisions concerning them.  She indicated that, if she was able to find housing in respondent"s district, the children would return to live with her.

Prior to the conclusion of the hearing, S.W. completed a parent affidavit for each child stating that the children live with petitioner "because I would like" [them] to remain in Southampton school district."  The affidavits indicated that the children "come home" with S.W. on weekends.

By letter dated February 13, 2003, the assistant superintendent notified S.W. of her determination that J.H. and A.H. were not district residents and could not attend the respondent"s schools.  The letter indicated that S.W. had not made a total transfer of custody and control to petitioner, that the children were living with petitioner so they could attend school in respondent"s district and that S.W. had provided no explanation for the surveillance conducted by the district.  On February 23, 2003, petitioner filed applications in Suffolk County Surrogate"s Court seeking appointment as legal guardian of J.H. and A.H.  On March 18, 2003, petitioner commenced this appeal.  Petitioner"s request for interim relief was granted on March 26, 2003.

On August 4, 2003, Surrogate"s Court denied petitioner"s applications for letters of guardianship.  On August 18, 2003, respondent applied, pursuant to "276.5 of the Commissioner"s regulations, to submit additional papers, including the Surrogate"s Court decisions, which have been accepted as part of this appeal.

Petitioner claims that J.H. and A.H. reside with her in respondent"s district.  Respondent asserts that S.W. has not transferred complete custody and control of the children to petitioner, and that the basis for the purported transfer is to attend respondent"s schools.  Respondent also claims the appeal is untimely, the petition is not verified, and that the doctrine of res judicata or collateral estoppel warrants dismissal.

I will first address respondent"s procedural claims.  Section 275.16 of the Commissioner"s regulations requires that an appeal be initiated with 30 days of the decision or action complained of.  Respondent asserts that the petition challenging its residency determination of February 13, 2003 was not served until March 18, 2003 " outside the 30-day time period.  There is no indication in the record as to the exact date S.W. or petitioner received this letter.   However, the February 13, 2003 letter indicates that it was sent to S.W. by regular certified mail.  Affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419), the date of receipt of the decision would be February 20, 2003.  The petition was served on March 18, 2003, less than 30 days after such date, and the appeal is, thus, timely (Appeal of Malek, 41 Ed Dept Rep 312, Decision No. 14,697; Appeal of Marbury, 41 id. 119, Decision No. 14,634).

Section 275.5 of the Commissioner"s regulations requires that all pleadings in an appeal to the Commissioner must be verified.  Respondent claims its copy of the petition was not verified by petitioner as required.  However, the petition filed with my Office of Counsel contains a verification by petitioner.  Accordingly, I decline to dismiss the petition for lack of proper verification (Appeal of Hollister, 40 Ed Dept Rep 658, Decision No. 14,577).

The appeal must be dismissed, however, 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 the school district to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of a Student with a Disability, 43 Ed Dept Rep ___, Decision No. 14,926; Appeal of Gimenez, 42 id.  ___, Decision No. 14,812; Appeal of Curran, 42 id. ___, Decision No. 14,772).  A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of a Student with a Disability, supra; Appeal of Gimenez, supra; Appeal of Curran, supra).  This presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing in the district (Appeal of a Student with a Disability, supra; 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 a Student with a Disability, supra; Appeal of Hutchinson, 42 Ed Dept Rep ___, Decision No. 14,865).

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 a Student with a Disability, supra; Appeal of Hutchinson, supra; Appeal of Maxwell, 42 Ed Dept Rep __, Decision No. 14,799).

Here, petitioner has failed to rebut the presumption that J.H. and A.H. reside with their mother outside respondent"s district.  Petitioner has not established that their permanent residence is with her or that S.W. has made a total transfer of custody and control.  Although petitioner attempted to obtain letters of guardianship, they were denied by Surrogate"s Court.

In addition, at respondent"s residency hearing S.W.  offered no plausible explanation why the children were observed leaving her residence in Riverhead and being dropped at a bus stop in respondent"s district.  The credibility of S.W."s purported transfer of custody to petitioner is also called into question because it did not occur until shortly after respondent challenged the children"s residency.  Moreover, the information S.W. provided at the hearing indicates that she retained financial responsibility for the children, as well as responsibility for their medical care.  In addition, S.W. indicated that the children returned home with her on weekends and would return to live with her if she found housing in respondent"s district.  Finally, the parent affidavits S.W. provided state that the reason for the transfer was to permit the children to remain in respondent"s district.  As discussed above, residence is not established in such circumstances.

Therefore, I find that respondent"s determination was neither arbitrary nor capricious and will not overturn it.  In view of this disposition, I need not address respondent"s remaining claims.