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Decision No. 15,813

Appeal of SHALANA SMITH, on behalf of her daughters ASHALEE JOSEPH and SIANNA ALSTON, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 15,813

(August 6, 2008)

Ehlrich, Frazer, & Feldman, attorneys for respondent, Christie R. Medina, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that her daughters, Ashalee and Sianna, are not district residents.  The appeal must be dismissed.

Petitioner registered Ashalee and Sianna in repondent’s schools in September 2000 and September 2006, respectively.  At those times, petitioner gave her address as Chautauqua Avenue in West Hempstead, within respondent’s district.

In January 2008, the district’s director of pupil personnel services (“director”) commenced an investigation of the family’s residency, after receiving a report that Sianna was arriving late to school.  By letter dated January 24, 2008, the director notified petitioner that the district had become aware that she did not reside in the district and that her children were no longer eligible to attend the district’s schools as of February 7, 2008.  On January 31, 2008, petitioner met with the director, who refused to change the determination.  Thereafter, petitioner appealed to respondent.  By letter dated March 7, 2008, respondent upheld the determination to exclude Ashalee and Sianna from the district’s schools as of March 21, 2008.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 28, 2008.

Petitioner argues that her children reside with her mother on Chautauqua Avenue, in respondent’s district.  Petitioner requests a determination that her children are district residents and are entitled to attend the district’s schools tuition-free.  In addition, petitioner requests that I not consider respondent’s answer as it was submitted late.

Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefore (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (see Appeal of the City School Dist. of the City of Plattsburgh, 45 Ed Dept Rep 350, Decision No. 15,345; Appeal of Scanlon, et al., 41 id. 114, Decision No. 14,632; Appeal of Bronico, 32 id. 54, Decision No. 12,755).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Bonham, 44 Ed Dept Rep 179, Decision No. 15,140).  Respondent submitted its answer one day past the acknowledged 20-day period and simultaneously requested a one-day extension.  Respondent’s attorney offered as excuses the press of other business and a miscalculation of the return date.  I do not find these excuses compelling.  Therefore, I have not accepted respondent’s answer, and petitioner’s factual statements are deemed to be true.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

Petitioner asserts that her children are district residents and reside on Chautauqua Avenue, with her mother, the children’s grandmother.  However, in the petition, petitioner admits that she resides on Church Street in Freeport, New York, outside respondent’s district, to care for her ill father.  Petitioner also admits that she has not surrendered custody of her children to her mother.  Moreover, although she implies that her presence in Freeport may be a temporary situation, she does not indicate any intent to return to respondent’s district in the future.  Accordingly, on the record before me, I am constrained to find that petitioner has failed to rebut the presumption that her daughters reside with her outside the district.  Therefore, I cannot conclude that respondent’s determination was arbitrary or capricious.

Although the petition must be dismissed, I note that petitioner has the right to reapply to the district for her children’s admission if circumstances change and to present any new information for the district’s consideration.