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Decision No. 15,075

Appeal of IZABEL SKUGOR, on behalf of RAFAELA JERONIMO ROWEDER, from action of the Board of Education of the Sewanhaka Central High School District regarding residency. 

 (July 2, 2004)


Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel


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

By registration form dated March 24, 2003, petitioner, a resident of respondent's district, sought admission of Rafaela to the district's schools beginning in September 2003.  Rafaela is the daughter of petitioner's sister who lives in Brazil.  At the time petitioner applied for Rafaela's admission, Rafaela was not yet living with her.

On the sworn registration form, petitioner indicated that Rafaela "wants to come here and live with me to improve her English before she starts college."  Petitioner also stated that this arrangement would be temporary and that Rafaela's parents would provide one-half of Rafaela"s financial support.  In a sworn affidavit, which was part of the registration materials, petitioner reiterated that Rafaela wanted "to have an opportunity to come to this country and learn the English language with proficiency," and that the proposed living arrangement would last for one year.  Also, in a sworn affidavit, Rafaela's parents confirmed that the arrangement would allow Rafaela to study in another country and would last one year.

By letter dated May 9, 2003, respondent's Administrative Assistant to the Superintendent notified petitioner that Rafaela was not entitled to attend the public schools of the district on the basis of "parental residence out-of-district" and "temporary residence established for attending district schools." 

On May 20, 2003, petitioner appealed this determination to the district's administrative review officer.  An administrative hearing was held on June 17, 2003.  At the hearing petitioner testified that Rafaela would be moving to her home in July or August 2003, that Rafaela would attend respondent's schools in the eleventh grade, and that after one year Rafaela would return to Brazil.  Petitioner stated that she agreed to have Rafaela live with her because her sister was experiencing financial problems.  Petitioner also stated that another reason for the living arrangement was to allow Rafaela to improve her English before starting college.  Petitioner submitted a Brazilian court document, dated June 13, 2003, certifying that petitioner was granted temporary custody of Rafaela and that petitioner "may request, separately and jointly, anything pertaining to such minor, including enrolling her in social and health programs, receive benefits, without affecting the rights and obligations of the permanent custody holder."  Petitioner testified that she would provide 100 percent of Rafaela's financial support, but that she would consult with Rafaela's parents on educational and medical issues.

When questioned about why she had not stated in the registration materials that Rafaela was coming to live with her because of her parents' financial difficulties, petitioner stated that she "didn"t think there was going to be any question about that," and gave no further explanation.  Also, when questioned about why she indicated in the registration materials that Rafaela's parents would contribute one-half of Rafaela"s financial support, petitioner stated that she recently visited her sister in Brazil and realized that her sister would not be able to provide any support.

On July 28, 2003, respondent's review officer issued a determination that Rafaela was not a district resident and therefore not entitled to attend respondent's schools.  This appeal ensued. On August 29, 2003, petitioner's request for interim relief was denied.

     In this appeal, petitioner claims that Rafaela lives with her and requests a determination that Rafaela is a district resident entitled to attend the district's schools without the payment of tuition.  Respondent claims that its determination that Rafaela is not a district resident was rational and supported by the record.  In addition, respondent claims that the petition should be dismissed because it was not properly verified.

     Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner must be verified.  Respondent claims that petitioner's verification is defective.  The petition, which is dated August 20, 2003, states that Rafaela arrived in the United States "today."  However, the verification is dated August 19, 2003.  Respondent contends, therefore, that petitioner could not have verified the fact of petitioner's arrival on August 20, 2003.  I find this error to be deminimis.  Whether Rafaela arrived on August 19th or 20th is not material to the issues in this appeal, and I do not find that the inconsistency in the dates prejudiced respondent.  A liberal interpretation of the rules is appropriate where the petitioner is prose and there is no prejudice to respondent (Appeal of Metze, 42 Ed Dept Rep 40, Decision No. 14,768, Appeal of Smith, 40 id. 172, Decision No. 14,452).  Accordingly, I decline to dismiss the petition for lack of proper verification.

The appeal must be dismissed, however, on the merits.  Education Law "3202(1) provides in pertinent part:

A person who is over the age of 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.  176, Decision No. 14,812; Appeal of Curran, 42 id. 49, 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 134, 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 310, Decision No. 14,865).

In addition, 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, supra).

In this case, petitioner has failed to rebut the presumption that Rafaela's residency is with her parents in Brazil. Petitioner has not established that Rafaela's permanent residence is with her or that petitioner's parents have made a total transfer of custody and control.  The Brazilian court certification specifically grants temporary custody to petitioner and provides that the rights and obligations of the permanent custody holder, Rafaela's parents, would not be affected.  Furthermore, petitioner states that she will consult with Rafaela's parents on educational and medical matters involving Rafaela.

Petitioner admits that Rafaela will only live with her for one year, and will return to Brazil to live with her parents.  Furthermore, petitioner stated in the registration materials that Rafaela's parents would pay one-half of Rafaela's expenses.  Petitioner only raised the issue of financial hardship after respondent denied Rafaela's admission to its schools.  Petitioner admits that a reason for Rafaela coming to live with her was to improve her English prior to going to college.  As stated above, Rafaela may not establish residency solely to take advantage of the district's schools to improve her English.

Based on the totality of the record, I find that respondent"s determination was neither arbitrary nor capricious and will not overturn it.