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Decision No. 16,037

Appeal of DON MCLAUGHLIN, on behalf of his cousin BRANDELL ROGERS, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 16,037

(March 29, 2010)

Ingerman Smith, LLP, attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of White Plains (“respondent”) that his cousin, Brandell, is not a district resident.  The appeal must be dismissed.

Petitioner is a resident of respondent’s school district who holds himself out as Brandell’s guardian.  In his petition, petitioner alleges that Brandell has been living with him since March 1999, and that Brandell has resided in the district for four years.

In July 2009, petitioner attempted to enroll Brandell in the district’s schools by submitting a care, custody and control application signed by petitioner and Brandell’s mother.  The application, which left many questions unanswered, stated that Brandell lived with his mother prior to April 2009 but would live with petitioner until he graduates.  The application also stated that the reason Brandell’s mother surrendered care, custody and control of Brandell to petitioner was “education . . . father figure.”

By letter dated July 24, 2009, petitioner was told that Brandell was not a district resident and that he would not be permitted to attend the district’s schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 1, 2009.

Petitioner argues that Brandell is a resident of the district because he lives with petitioner who is his legal guardian which is evidenced by the fact that petitioner provides food, shelter and clothing and exercises control over Brandell’s activities and behaviors.

Respondent argues that Brandell’s mother did not fully and permanently transfer care, custody and control to petitioner and therefore its decision was rationally based.  Respondent also objects to petitioner’s verified reply.

I will first address respondent’s procedural objection.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Jeudy, 46 Ed Dept Rep 512, Decision No. 15,579).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Moyer, 46 Ed Dept Rep 290, Decision No. 15,511; Appeal of Santana, 46 id. 255, Decision No. 15,499; Appeal of Werner, 45 id. 14, Decision No. 15,244).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence  (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeal of Proctor, 46 id. 575, Decision No. 15,599).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293) or the hardships of single parenting (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 (8 NYCRR §275.10; Appeals of Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

Petitioner has failed to rebut the presumption that Brandell’s legal residence is with his mother.  The application for care, custody and control submitted to the district in July 2009 stated that Brandell would live at petitioner’s address until he graduates.  The application also indicated that one of the reasons Brandell was living with petitioner was education.  These statements rightfully caused respondent to question whether the reason Brandell was residing with petitioner was to take advantage of the schools of the district.  Although the petition stated that Brandell and his mother agreed that “they cannot live under the same roof”, no further explanation was given as to why this required Brandell to live with petitioner.

Additionally, petitioner’s papers are inconsistent about how long Brandell has resided with him.  The petition states that Brandell has resided in the district for four years but later states that he has resided with petitioner since March 1999.  The application for care, custody and control, however, states that Brandell has resided with petitioner only since April 2009.  These inconsistencies call into question the accuracy of other statements in the petition and the application for care, custody and control.  Finally, other than one allegation in the petition, no information was provided explaining why Brandell’s mother is relinquishing care, custody and control and what, if any, relationship she continues to have with Brandell.

Based upon the record before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that Brandell is not a district resident.  While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Brandell’s behalf in the future, should circumstances change, and to present any new information for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.