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Decision No. 16,136

Application to reopen the Appeal of C.S. and E.L.S., on behalf of their grandson J.S.-J., from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 16,136

(August 20, 2010)

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

STEINER, Commissioner.--The Board of Education of the Malverne Union Free School District (“respondent”) seeks to reopen the Appeal of C.S. and E.L.S., 48 Ed Dept Rep 466, Decision No. 15,918, which sustained petitioners’ challenge to respondent’s residency determination.  The application must be granted and, on reopening, the appeal must be sustained.

Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made.  A reopening may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal (Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395; Application to reopen the Appeal of Johnson, 45 id. 275, Decision No. 15,320).  In addition, §276.8(c) permits the Commissioner to reopen a prior decision, on his own motion, where in the Commissioner’s judgment the interests of justice will be served thereby.

Respondent urges that I reopen the prior decision in the interests of justice because of a statutory change.  Specifically, respondent maintains that a reopening is warranted in light of Chapter 404 of the Laws of 2008, which went into effect on November 3, 2008, while the underlying residency appeal was pending.  Respondent argues that Chapter 404 affects the legal analysis in a case where a child resides with a court-appointed guardian.  Chapter 404 of the Laws of 2008 was not in effect at the time of respondent’s residency determination.  Accordingly, I will not reopen the prior decision on this basis.[1]

Respondent also contends that the appeal should be reopened because the Commissioner misapprehended the facts by finding that petitioners’ grandson spent no more evenings away from petitioners’ residence after his suspension ended.  Respondent contends that the student was suspended from February 1, 2008 until April 14, 2008 and argues that its surveillance on eight consecutive school days in May 2008 revealed the student being transported each morning by his mother to petitioners’ home after he resumed regular attendance at the middle school.  Neither the petition, reply, nor respondent’s answer stated the exact dates of the student’s suspension.  Respondent relies rather on petitioners’ submission of August 7, 2008, to establish these facts.  That submission included, among other things, the superintendent’s February 7, 2008 letter advising that petitioners’ grandson was suspended until April 14, 2008.

The prior decision did not expressly state whether the August 7, 2008 submission was considered, and indeed upon review, it appears that no decision was ever made about its acceptance.  Accordingly, the appeal must be reopened to address this submission and whether it impacts the outcome of the decision. 

Section 276.5 of the Commissioner’s regulations permits the submission of additional affidavits, exhibits and supporting papers upon approval of the Commissioner.  Because the August 7 submission relates to the claims in the petition and was filed prior to the deadline for a reply, I find that it should be accepted into the record and considered in the appeal.  Upon consideration of the August 7, 2008 submission, I conclude that the prior decision was based on a misapprehension of the facts regarding the exact dates of the student’s suspension in relation to the surveillance conducted by respondent.  Therefore, respondent’s application to reopen the previous appeal is granted and petitioners’ explanation for their grandson’s evenings with his parent during May 2008 will be reviewed. 

In their August 7, 2008 submission, petitioners described the reason for their grandson’s presence at his parent’s home on the May surveillance dates as “... intense tutoring evenings into late hours in May and June to provide him with the academic intervention he needed to compensate for him missing ten (10) academic weeks of school.  For two days a week he was with his mother the rest with us studying and preparing for his content area and core study final exams... On May 1, May 2, he was preparing for exams, when [the student] was seen with his mother.”  In their subsequent verified reply, served on September 15, 2008, petitioners stated that “when the suspension concluded, life returned to normalcy and the need for [the student] to spend evenings away from home ceased.”  Although this statement is somewhat contradictory, it does not negate in its entirety petitioners’ claims that their grandson spent time at his mother’s during the surveillance period to compensate for academic difficulties related to his suspension.  Indeed, other than the specific dates, petitioners consistently asserted that the student spent time with his mother for additional academic help during the spring due to an out-of-school suspension.

Moreover, the record supports the conclusion reached in the underlying appeal, namely that respondent failed to demonstrate that anyone other than petitioners are providing financial support, food, shelter and other necessities for petitioners’ grandson.  Furthermore, as previously noted, while the student appears to occasionally visit his parents, such continuing relationship is not determinative in resolving the question of the student’s residency. 

Where a court order transfers custody of a child to a guardian, the Commissioner will accept the court’s order as determinative for residency purposes, provided the child actually lives with the court-appointed guardian (Appeal of a Student with a Disability, 46 Ed Dept Rep 436, Decision No. 15,556; Appeal of a Student with a Disability, 46 id. 60, Decision No. 15,441; Appeal of D.R., 45 id. 550, Decision No. 15,412).  While respondent continues to dispute the legitimacy of the original transfer, that has no bearing on my determination.  For the reasons set forth herein, I find that respondent has failed to establish that petitioners’ grandson resides with anyone other than his legal guardians within the district.  Accordingly, the appeal remains sustained.       

THE APPLICATION TO REOPEN IS GRANTED.

ON REOPENING, THE APPEAL REMAINS SUSTAINED.

END OF FILE.

[1] Although it is not a basis for reopening, I note that Chapter 404 of the Laws of 2008, which, among other things, amended §657 of the Family Court Act and §74 of the Domestic Relations Law, is not inconsistent with the analysis in Appeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412 and subsequent Commissioner’s decisions holding that court ordered transfers of custody are determinative of residency where the child actually lives with the court-appointed guardian.