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Decision No. 15,099

Appeal of MABEL CRUMP, on behalf of FAITH ANN ADAMS, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.


Decision No. 15,099


(August 13, 2004)


Kehl, Katzive & Sigmond. LLP, attorneys for respondent, Terri E. Simon, Esq., of counsel


MILLS, Commissioner.--Petitioner, a district resident, appeals the determination of the Board of Education of the City School District of the City of New Rochelle ("respondent") that her granddaughter, Faith Ann Adams, is not district resident.  The appeal must be dismissed.

     In the spring of 2003, district officials became aware that Faith, then a sophomore at respondent"s high school, might be living with her mother outside the district on Hancock Avenue in Mount Vernon.  Respondent"s director of pupil services ("director") asked the attendance officer ("officer") to investigate Faith"s residency.  On the school mornings of May 19 through 22, 2003, between 7:00 and 7:50 a.m., the officer parked in his car near petitioner"s residence but did not observe Faith exit the house.  On the school mornings of May 28 and 29, and June 2 and 3, 2003, between 7:05 and 7:17 a.m., the officer parked next door to the Hancock Avenue address and observed Faith exit the side door and board the #42 bus to New Rochelle.  On June 3, the officer followed the #42 bus to an intersection where he saw Faith transfer to the #45 bus that proceeds to the district"s high school.  Despite this evidence, respondent apparently took no action regarding Faith"s residency at the end of the 2002-2003 school year. 

The record indicates that the officer conducted additional surveillance at the beginning of the 2003-2004 school year.  On the school mornings of September 8 and 9, at approximately 7:15 a.m., he observed Faith leave her mother"s house on Hancock Avenue and board bus #42 and transfer to bus #45.  On the school days of September 16 and 17, at approximately 3:35 p.m., the officer observed Faith talking to friends on Hancock Avenue in Mount Vernon.  On September 26, 2003, at 7:00 a.m., the officer observed Faith, her mother and two young children leave the Hancock Avenue address and enter a white Ford Explorer.  The mother discharged the younger children at an elementary school in Mount Vernon, and then left Faith at the district"s high school.  On school days of October 20 through 24, from 7:10 to 8:15 a.m., the officer parked near petitioner"s residence, but did not observe Faith exit the residence on any of those days.  Finally, on the school days of February 10 through 12, 2004, between 7:40 and 7:55 a.m., the officer observed a maroon Taurus pick up Faith and two younger children at the Hancock Avenue address.  He followed the vehicle as it discharged the two children at elementary school in Mount Vernon and Faith at the district"s high school.

     Based on this investigation, the director notified petitioner by letter dated March 15, 2004 that she had information that Faith did not reside with petitioner.  The director invited petitioner to submit documentation by March 26, 2004, substantiating Faith"s residency, after which she intended to make a final decision.  The letter, a copy of which was sent to Faith"s mother, also referred to a May 3, 2001 Order of Custody/Visitation from the Westchester Family Court, that granted joint custody of Faith to petitioner and Faith"s mother, with physical custody awarded to petitioner.

     Petitioner failed to respond to the director"s March 15 letter, although Faith"s mother attempted to reach the director twice by telephone.  By letter dated March 31, 2004, the director informed petitioner (with a copy to Faith"s mother) of her determination that Faith did not reside with petitioner and was therefore ineligible to attend the schools of the district after April 16, 2004.  The director also noted that petitioner referred school staff members to Faith"s mother when staff asked to speak or meet with petitioner. 

     On April 14, 2004, petitioner met with the director.  Petitioner offered no documentation to verify that Faith resided with her, but merely stated that Faith lived with her, although she sometimes stayed overnight in Mount Vernon when she worked late or babysat for her siblings.  When questioned why she referred staff to Faith"s mother, petitioner replied that Faith"s mother "can understand better" and "I want her to be involved."  After the director refused to change her decision, this appeal ensued.  Petitioner"s request for an interim order was granted on April 27, 2004.

Petitioner claims she is Faith"s legal guardian and that Faith resides with her in the district.  Respondent contends that its surveillance substantiates that Faith resides in Mount Vernon with her mother and is thus not entitled to attend respondent"s schools.

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 to students whose parents or legal guardians reside within the district (Appeal of a Sloley-Raymond, 44 Ed Dept Rep ___, Decision No. 15,085; Appeal of O.W., 43 id.  ___, Decision No. 14,949).  A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of a Sloley-Raymond, supra; Appeal of O.W., 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 Solely-Raymond, supra; Appeal of O.W., supra).  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 Sloley-Raymond, supra; Appeal of O.W., 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 a Sloley-Raymond, supra; Appeal of O.W., supra).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Newby, 42 Ed Dept Rep 107, Decision No. 14,790; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757). In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of B.H. and B.H., 43 Ed Dept Rep __, Decision No. 14,919; Appeal of J.T., 43 id. __, Decision No. 14,917).

In this case, petitioner submitted no documentation or evidence of Faith"s residency other than her conclusory statement that Faith resides with her in the district.  This is insufficient to rebut the presumption that Faith resides with her mother outside the district.  Although a court order purportedly grants physical custody of Faith to petitioner, the order is three years old and is contradicted by much of the other evidence.  Personal observations of the officer over 19 days of surveillance show that Faith does not actually reside with petitioner.  Petitioner submitted no evidence to rebut the investigator"s report.  Nor did petitioner provide any legitimate explanation to refute respondent"s surveillance other than asserting that Faith sometimes stayed with her mother when she worked late or babysat. 

Moreover, petitioner has not established that Faith"s mother has relinquished custody and control to petitioner.  Faith"s mother is clearly involved in Faith"s education, as evidenced by the fact that she telephoned the director in response to the director"s March 15 letter.  Accordingly, respondent"s determination was not arbitrary or capricious, and will not be set aside.