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Decision No. 16,405

Appeal of C.S., on behalf of her daughter A.S., from action of the Board of Education of the Valley Stream Central High School District regarding residency.

Decision No. 16,405

(August 30, 2012)

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Central High School District (“respondent”) that her daughter, A.S., is not a district resident.  The appeal must be dismissed.

A.S. has attended school in respondent’s district since July 2009.  At that time, petitioner indicated in a registration packet that she and A.S. were renting space in the home of A.S.’s grandmother in Valley Stream, within the district (“Valley Stream address”).  In November 2011, petitioner presented the district with a letter pertaining to the National School Lunch and National School Breakfast programs, addressed to petitioner in Cambria Heights, outside the district (“Cambria Heights address”).  Based on this information, the district commenced a residency investigation and conducted surveillance of both the Valley Stream address and the Cambria Heights address.  Surveillance was conducted on six days from December 6, 2011 through December 22, 2011 from 6:00 a.m. to 9:00 a.m.  By letter dated March 6, 2012, the superintendent notified petitioner that A.S.’s residency was in question and afforded petitioner an opportunity, upon request, for a hearing at which she could submit information regarding her residency.  Petitioner did not respond to the district’s letter.  By letter dated March 16, 2012, the superintendent notified petitioner of his determination that A.S. was not a district resident and, thus, as of April 4, 2012 would no longer be entitled to attend respondent’s schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 12, 2012.

Petitioner alleges that A.S. resides with her grandmother, S.C., at the Valley Stream address and, therefore, is entitled to attend respondent's schools.  Petitioner also maintains that she has a medical condition which affects her ability to control, direct and protect A.S., requiring A.S. to permanently reside with her grandmother. 

Respondent contends that its decision that A.S. is not a district resident is in all respects proper.  Respondent maintains that petitioner is not a district resident and has not permanently transferred care, custody and control of her daughter to S.C.  Respondent also asserts that the appeal is untimely.

I will first address respondent’s procedural defense.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Respondent issued its residency determination by letter dated March 16, 2012.  Although S.C., the student’s grandmother, first filed a petition with my Office of Counsel on April 17, 2012[1], by letter dated April 20, 2012, my Office of Counsel rejected that petition because it failed to contain the required notice and was not properly verified in accordance with Commissioner’s regulations.  The letter stated that if S.C. served and filed a corrected petition - with the appropriate notice and verification - within two weeks of the April 20, 2012 letter, the appeal would be deemed to have been initiated on the date that “the enclosed petition” was personally served upon the district.  Instead, on May 4, 2012, A.S.’s mother, C.S., served a petition on the district and filed it with my Office of Counsel.  Because S.C. failed to serve and file a corrected petition, no appeal has been initiated by her, on behalf of A.S., from respondent’s March 16, 2012 residency determination.  The petition before me, by C.S., was served upon respondent on May 4, 2012, seven weeks after respondent’s March 16, 2012 residency determination. Therefore, the appeal is untimely.  To the extent petitioner maintains that she was unaware of the required procedures and requirements to properly commence a timely appeal, except in unusual circumstances not present here, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).

The appeal also must be dismissed 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 school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On this record, petitioner has failed to rebut the presumption that A.S. resides with her at the Cambria Heights address outside respondent’s district. The surveillance occurred early in the morning on six different dates from December 6 through December 22, 2011.  However, A.S. was never observed leaving the Valley Stream address to go to school.  To the contrary, on four different dates from December 12, 2011 through December 22, 2011, petitioner and A.S. were observed in the early morning exiting the Cambria Heights address and entering petitioner’s vehicle.  Each day, A.S. was present at school.  On December 6, 2012, the investigator observed petitioner bring A.S. to the Valley Stream address in the early morning.  A.S. entered, then exited the house and was dropped off at school by petitioner.

Moreover, there is no evidence in the record before me that petitioner has surrendered total and permanent custody and control of A.S to her grandmother, S.C.  To the contrary, petitioner asserts that she has “always shared co-control, custody, care and decision making regarding [A.S.] to [sic] her grandmother because [petitioner] could not properly exercise such responsibilities.”  It is noteworthy that C.S. has commenced this appeal on behalf of A.S., which belies her claim that she has relinquished custody and control of A.S.  In addition, S.C. avers that she and petitioner share control over A.S.  Significantly, respondent asserts that in S.C.’s rejected April 17, 2012 petition, served only two weeks earlier than the petition in this appeal, S.C. stated that petitioner continues to provide financial support for room, board, clothing and other necessities for the child.  Although S.C.’s petition was never re-served and filed, and therefore, is not before me, I note that petitioner herein submits no evidence to refute respondent’s assertions.  Therefore, upon consideration of the totality of the evidence in this record, I find that petitioner has not met her burden of establishing that there has been a total and presumably permanent transfer of custody and control of A.S. to S.C. 

Based upon the record before me, I cannot conclude that respondent’s determination that A.S. is not a district resident is arbitrary, capricious or unreasonable.  While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on A.S.’s behalf in the future, should circumstances change, and to present any new information on A.S.’s residency, including any formal guardianship papers, for respondent’s consideration.



[1] Apparently, on or about March 29, 2012, a petition was allegedly delivered to the district naming S.C. as petitioner.  However, that petition was never filed with my Office of Counsel as required by §275.9 of the Commissioner’s regulations.  On April 3, 2012, the district submitted an affirmation in opposition to the petition and request for a stay.  On April 13, 2012, my Office of Counsel returned the affirmation to district counsel, indicating that no petition had been filed and that there was no pending appeal regarding A.S.