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Decision No. 15,295

Appeal of W.J., on behalf of L.B., from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.

Decision No. 15,295

(August 23, 2005)

Hodgson Russ, LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel


AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Cleveland Hill Union Free School District ("respondent") that her granddaughter, L.B., is not a district resident. The appeal must be dismissed.

Petitioner resides in Cheektowaga, within respondent's district. During the 2003-2004 and 2004-2005 school years, L.B. attended respondent's high school using petitioner's address. In November 2004, L.B. asked a guidance counselor to mail a letter for her. The guidance counselor noticed the return address was located outside the school district in Buffalo and reported the information to district administrators. The district commenced an investigation of L.B.'s residence, including surveillance.

An investigator observed petitioner's residence on the school mornings of November 1, 5 and 9, 2004, but did not observe L.B. exit the house. On November 15, 17 and 19, 2004, the investigator conducted surveillance of L.B.'s mother's home in Buffalo. On November 15 and 19, he observed L.B. exiting the house.

By letter dated December 3, 2004, respondent's superintendent, as the designee for residency determinations, notified L.B.'s mother of his preliminary determination that L.B. was not a district resident and informed her of her right to submit information regarding L.B.'s residency prior to his rendering a final determination. Petitioner met with the superintendent and stated that L.B. lived with her, but that she often left early to go to her mother's house in Buffalo, where she assisted in the operation of a daycare center at that location prior to going to school. In light of this information, the superintendent initiated further investigation and additional surveillance.

The investigation revealed that L.B.'s telephone number is registered to her mother's Buffalo address. The investigator also reported that "Jackson's Wonderland Daycare" was not listed at L.B.'s mother's address - contrary to petitioner's claim. Instead, it is listed at another Buffalo address owned by petitioner. Moreover, the corporate documents for the daycare expired on June 30, 2004.

On December 16, 2004, the investigator conducted additional surveillance of both petitioner's address and L.B.'s mother's address. On that date, L.B. exited her mother's home at 6:35 a.m. On December 21, 2004, L.B. was observed exiting petitioner's address at 7:50 a.m.

On January 5, 2005, petitioner provided the district with a letter indicating that she had applied to Surrogate's Court for guardianship of L.B. By letter dated January 6, 2005, the superintendent notified petitioner of his final determination that L.B. is not a district resident, finding that the mere application for guardianship did not constitute a guardianship arrangement, and that in any event, he had determined that the application was made for the sole purpose of gaining L.B.'s admission to the district's schools. The letter set forth petitioner's right to appeal the determination to the Commissioner of Education.

On January 7, 2005, petitioner and L.B.'s mother met with the superintendent to discuss his residency determination. The superintendent reviewed the basis for his determination and noted that, apart from the guardianship application, petitioner had not submitted any documentary evidence supporting her claim that L.B. resided with her. At that meeting, L.B.'s mother indicated that she continued to claim L.B. as a dependent for tax purposes. The superintendent concluded the meeting by affirming his determination that L.B. was not a district resident and reiterated petitioner's right to appeal that determination.

By letter to the superintendent, dated January 7, 2005, petitioner requested that he permit L.B. to continue to attend school until petitioner commenced an appeal. The superintendent agreed, on condition that the appeal be initiated "within the next thirty days." Petitioner did not properly commence this appeal until April 5, 2005. On April 20, 2005, petitioner's request for interim relief was granted.

Petitioner claims that L.B. resides with her in respondent's district. She claims that L.B. came to live with her because of her mother's drug addiction. She also submits an order of the Surrogate's Court, Erie County, dated January 31, 2005, transferring guardianship to petitioner. The order states that petitioner is accountable for L.B.'s "care, welfare and education." Respondent contends that the appeal is untimely and that its determination that L.B. is not a district resident is supported by the record.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).

The superintendent, as respondent's designee, rendered his written residency decision on January 6, 2005 and reiterated that determination in a January 7, 2005 meeting with petitioner. Petitioner attempted to initiate an appeal on February 5, 2005, but my Office of Counsel returned the papers for lack of proper notice required by �275.11 of the Commissioner's regulations and failure to effect proper service under �275.8(a) of the regulations. Petitioner resubmitted the same papers on March 23, 2005 without curing the defects, and the papers were again returned to her. The appeal was not properly commenced until April 5, 2005, almost three months after the residency determination. Petitioner offers no explanation for her failure to properly commence a timely appeal. Indeed, petitioner did not submit any reply to respondent's challenge to the timeliness of the appeal. Accordingly, the appeal must be dismissed as untimely.

While the appeal must be dismissed, I note that, subsequent to respondent's January 6 residency determination, petitioner obtained the Surrogate's Court order appointing her as L.B.'s guardian. Respondent did not have that documentation before it for consideration prior to rendering its residency determination. Petitioner retains the right to reapply for L.B.'s admission at any time (Appeal of Shaffer, 43 Ed Dept Rep 79, Decision No. 14,925).