Appeal of EDUARDO RAMIREZ, on behalf of JAVIER DIAZ and ANDRES TORRES, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding residency.

Decision No. 14,449

(August 28, 2000)

Long Island Advocacy Center, Inc., attorneys for petitioner, Janis Weissman, Esq., of counsel

Guercio & Guercio, attorneys for respondents, Vanessa M. Sheehan, of counsel

Mills, Commissioner.--Petitioner appeals the determination of the Board of Education of the Plainview-Old Bethpage Central School District ("respondent") that his nephews, Javier Diaz and Andres Torres, are not district residents. The appeal must be sustained.

In January 2000, Javier and Andres came from Colombia to live with petitioner who resides in respondent’s district. Later that month, petitioner sought to enroll the boys in respondent’s high school.

On February 14, 2000, respondent approved the recommendation of its Director of Pupil Personnel Services and designee for residency determinations, Jane Albert, that both boys be permitted to attend respondent’s high school. Javier and Andres began attending respondent’s high school on March 3, 2000.

By letter dated April 18, 2000 Ms. Albert informed petitioner that the residency of his nephews was in question and that a hearing pursuant to 8 NYCRR 100.2(y) would be held on May 1, 2000. Petitioner appeared without counsel at the hearing. By letter dated May 3, 2000 Ms. Albert notified petitioner of her determination that his nephews were not district residents because each boy was residing in this country pursuant to a business/pleasure visa. The letter further informed petitioner that his nephews would no longer be eligible to attend district schools without the payment of tuition as of May 12, 2000. This appeal ensued. Petitioner’s request for interim relief to permit both boys to remain in respondent’s school without the payment of tuition pending a determination of this appeal on the merits was granted on May 23, 2000.

Petitioner asserts that his nephews came to live with him because they have been targeted by terrorists in their native country of Colombia. Petitioner states that terrorists have kidnapped and held for ransom the boys’ grandfather and two cousins, and have killed one of the cousins. Petitioner contends that in order to get the boys safely out of Colombia the family obtained tourist visas for them, because tourist visas are the quickest and easiest visas to obtain. Both visas expire in July 2000, and petitioner claims at that time his nephews will apply for asylum in the United States. Petitioner also maintains that each of the boys’ mothers signed affidavits relinquishing custody and control of the boys to him as part of the school registration process. Although Andres’ mother, Olga Russi, failed to check the box indicating she had relinquished custody, petitioner contends that her failure to do so was due to her inability to understand English, and that all other paper work indicates that she intended to relinquish custody of her son to him. Finally, petitioner claims that he has paid all of the boys’ expenses since they arrived in the United States, and has received no money from their parents.

Respondent maintains that the boys’ residence is in Colombia, where their parents reside. Respondent contends that the fact that Javier and Andres entered this country on B-2 "pleasure" visas is evidence that they do not intend to remain in this country and that their families intend to support them financially. Respondent also claims that petitioner does not have standing to bring this appeal.

Initially, I will address the issue of standing. An individual may not maintain an appeal pursuant to Education Law 310 unless aggrieved in the sense that she or he has suffered personal damage or injury to her or his civil, personal or property rights (Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Bocek, 37 id. 130, Decision No. 13,822; Appeal of Craft, et al., 36 id. 314, Decision No. 13,734). In this case, petitioner is a resident of respondent’s district. As such, a child residing in his household for whom the presumption of parental residence has been rebutted may attend district schools tuition-free. Petitioner alleges that respondent has abrogated that right, and I therefore find that petitioner may bring an appeal to challenge respondent's action (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Cron, supra; Appeal of Bocek, supra).

Turning to the merits of the appeal, 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 and related services to students whose parents or legal guardians reside within the district (Appeal of Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Burdi, 39 id. 176, Decision No. 14,206; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

A child's residence is presumed to be that of his or her parents (Appeal of White, 39 Ed Dept Rep 103, Decision No. 14,186; Appeal of Bogetti, 38 id 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). That presumption can be rebutted where it is shown that the parents have relinquished total custody and control, in which case the child's residence becomes that of the person assuming parental control (Appeal of Epps, 39 Ed Dept Rep ___, Decision No. 14,377; Appeal of Young and Billings, supra). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Epps, supra; Appeal of Pernell, 30 Ed Dept Rep 380, Decision No. 12,502), 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 Rivera, 38 Ed Dept Rep 119, Decision No. 13,997; Appeal of Garretson, 31 id. 542, Decision No. 12,729).

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 Lapidus, supra; Appeal of Cron, supra; Appeal of a Student with a Disability, 37 Ed Dept Rep 29, Decision No. 13,796). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Rivera, supra). In such cases, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Juarez, supra; Appeal of Lebron, 35 Ed Dept Rep 359, Decision No. 13,570).

Respondent claims that petitioner’s testimony at the hearing concerning the financial support of the boys indicates that the boys’ parents did not relinquish custody and control. When petitioner was asked, "Who supports the children?" His response was, "The father. I am support here. I don’t charge them for nothing." At the close of the hearing petitioner was asked again if the parents send any money to help support the children, to which he responded, "No." When asked whether the parents give the children anything, he answered, "Not at all." The transcript reveals that petitioner tried to answer all of respondent’s questions, but appeared to be confused at times. When asked directly, however, he testified that he was the sole support of the boys.

The colloquy between petitioner and respondent at the hearing is not entirely clear, leading me to the conclusion that petitioner had some degree of difficulty in understanding English. However, in an affidavit submitted in his reply, petitioner avers that he is the sole support for Javier and Andres, that their parents have sent no money since the boys' arrival in the United States, and that he has paid all of their expenses since they have lived with him. Petitioner’s affidavit, in conjunction with his hearing testimony, supports the conclusion that he is financially supporting Javier and Andres and providing for their necessities.

Respondent also places great reliance on the fact that the boys’ visas are B-2 "pleasure" visas, indicating no intent to stay in this country. I find compelling petitioner’s explanation that this type of visa was obtained to get the boys out of the country as quickly as possible. Petitioner has not wavered in his insistence that his nephews’ lives are in danger in Colombia. He also asserts that his nephews will seek asylum once their visas expire. In any event, the status of their visas is not an issue I will address in this appeal. However, I note that the U.S. Supreme Court in Plyler v. Doe, 457 US 202 (1982), recognized that even children who are illegal aliens cannot be denied a free public education if they are, as a factual matter, district residents.

This is not a case in which the students' residence has been changed from that of the parents’ merely to take advantage of the educational program of a particular school district. Rather, there is a valid reason unrelated to the district’s educational program which prompted Javier and Andres’ move. Based on the record before me, I find that petitioner has adequately rebutted the presumption that his nephews’ residence is with their parents and conclude that their actual residence is with petitioner (Appeal of Juarez, supra).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Javier Diaz and Andres Torres to attend school in the Plainview-Old Bethpage Central School District without the payment of tuition.

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