Appeal of S.R. and G.R., on behalf of N.G., from action of the Board of Education of the Mamaroneck Union Free School District, regarding residency.

Decision No. 17,843

(June 1, 2020)

Sisca Sisca & Associates, LLP, attorneys for petitioners, Peter F. Sisca, Esq., of counsel.

Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel.

Tahoe., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of Mamaroneck Union Free School District that their granddaughter is not a district resident.  The appeal must be sustained.

Petitioners are district residents and the maternal grandparents of N.G.  According to petitioners, N.G., a U.S. citizen, lived in Mexico with her mother from the age of two until she moved in with petitioners at their apartment in respondent’s district (the “in-district address”) on August 3, 2019.  In a notarized document dated July 23, 2019, N.G.’s mother: (1) granted permission for N.G. to travel with petitioners from Mexico to the United States; and (2) granted custody and control of N.G. to petitioners.  As described herein, the parties dispute the legal effect of the guardianship authorization. 

On or about August 12, 2019, petitioners attempted to enroll N.G. in respondent’s district.  Petitioners submitted the July 23, 2019 guardianship authorization, which the district translated from Spanish to English.  According to the district’s translation, N.G.’s mother granted petitioners the following rights:

THE ABILITY TO REPRESENT AND ACT AS GUARDIANS of her minor daughter [N.G.], amply authorizing them to legally represent her jointly or separately, in front of any authority, as well as in front of any school institution or hospital that requests it in said country.

When petitioners sought to enroll N.G., a district social worker fluent in English and Spanish asked petitioners to submit proof of residency as well as parent and custodian affidavits.  Petitioners thereafter submitted a notarized custodian affidavit from petitioner G.R. dated August 29, 2019.  In response to a question seeking “the reasons why the minor will live with the custodian,” petitioner G.R. answered “[t]o improve her studies” and further asserted that “[y]outh was abandoned by her biological father years ago and biological mother has struggled financially to provide for her daughter.”  Additionally, petitioner G.R. averred that she and her husband “ha[d] assumed custody and control of [N.G.], who is our granddaughter” and that they would be in charge of making decisions about N.G.’s health, well-being and education.  

On August 30, 2019, N.G.’s mother submitted a notarized, undated parent affidavit to the district.  In response to a question seeking confirmation that “the parent ha[d] surrendered the minor’s custody and control to the guardian,” N.G.’s mother averred that she had “surrendered custody and control of [her] daughter” to petitioners.  In response to a question seeking “the reasons why the minor does not live with her parents,” N.G.’s mother averred, “I, the mother, cannot yet enter the USA, and the father abandoned us 9 years ago we do not know anything about him.”

By letter dated September 10, 2019, respondent’s superintendent advised petitioners of respondent's determination that N.G. was not entitled to attend respondent’s high school as a district resident.  The letter stated that the information petitioners provided did not “establish a total transfer of care, custody and control of [N.G.] from her mother” and, further, that N.G.’s “mother was unable to offer a bona fide reason as to why she was sending [N.G.] from Mexico to Mamaroneck other than to study.”  This appeal ensued.  Petitioners’ request for interim relief was granted on October 23, 2019.

Petitioners contend they are N.G.’s legal guardians by virtue of the guardianship letters issued by appropriate Mexican governmental authorities; that they, alone, provide for N.G.’s care; and, further, that their home is N.G.’s “actual and only residence.”  Petitioners also argue that, even if she so desired, N.G. could not return home to live with her mother due to a natural disaster in her mother’s hometown of Oaxaca, Mexico.  Petitioners seek a determination that N.G. is a resident of respondent's district and is entitled to attend respondent’s schools without the payment of tuition.             

Respondent contends that petitioners have failed to demonstrate a permanent and total transfer of care, custody and control of the student from N.G.’s mother to them.  Respondent also argues that N.G.’s mother is not credible because she provided inconsistent explanations concerning N.G.’s family.  Respondent further asserts that “any purported transfer of custody was for purposes of taking advantage” of the district schools.

First, I must address two procedural matters.  Respondent requests that I disregard certain evidence not submitted to respondent prior to its residency determination.  The Commissioner has the discretion to consider evidence properly submitted in an appeal to the extent the additional evidence submitted is responsive to new material set forth in the answer and the affirmative defenses therein, even though it was not previously submitted to the district below (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,724; see Appeal of Moore, 57 id., Decision No. 17,353; Appeal of a Student Suspected of Having a Disability, 56 id., Decision No. 17,061).  In this case, petitioners presented additional documentary evidence for the first time in their petition, including, inter alia, a guardianship document executed in Mexico on September 26, 2019, as well as affidavits from N.G. and petitioner S.R.  Respondent has had an opportunity to respond to petitioners’ evidence and to submit evidence in opposition (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,724; see Appeal of Mirza, 57 id., Decision No. 17,128).  Therefore, in my discretion, I have considered petitioners’ evidence and respondent’s objections thereto in reaching my determination (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,724).

Additionally, petitioners have submitted a reply and reply affidavits from N.G., N.G.’s mother, and petitioner S.R.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply and accompanying affidavits, 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.

Turning to 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

On this record, I find that petitioners have met their burden of proving that N.G.’s mother effected a total transfer of custody and control of N.G. to petitioners.  Petitioners’ October 7, 2019 translation of the guardianship document states that N.G.’s mother issued to petitioners “the authorization to represent and to be the guardian of her minor daughter, [N.G.], authorizing them amply to legally represent her together or separately, before any authority, as before of (sic) any school institution or hospital in the cited country.”  I find this language sufficient to transfer custody and control of N.G. to petitioners for the purpose of establishing residency. 

Respondent argues that N.G.’s mother did not effect a permanent transfer of custody and control because, according to the district’s translation, N.G.’s mother only granted guardianship “during [N.G.’s] stay in that country.”  However, this phrase is contained in a separate sentence authorizing N.G.’s travel from Mexico to the United States.  Respondent does not explain how this travel authorization limits the general transfer of custody and control quoted above.

Any ambiguity regarding the extent of the guardianship provision is clarified by a document captioned “Guardian Power” executed by N.G.’s mother and submitted with this appeal.  This affidavit was sworn before a notary on October 3, 2019.  After citing several sections of the civil code of Mexico, the document states:

I give ... the present power to my parents, [i.e., petitioners], so that they can join or separately, have the guardianship and custody of my daughter, [N.G.], to manage the correspondent dependences, medical insurance coverage, enrollment in public or private schools, authorizing or participating in extracurricular activities, civic, social, recreational, attendance to events or her age, permit of learning, ... granting them the present guardian power, until the minor [N.G.], fulfills the majority of age or in writing, [petitioners] renounce this.

Additionally, in the custodian affidavit submitted to the district, petitioner G.R. averred that N.G. would reside with petitioners on a “permanent” basis.  In N.G.’s affidavit, she avers that her grandparents’ apartment in Mamaroneck is her permanent home and that she has “nowhere else to go” and “no other family that [she] could live with.”

The record also contains evidence reflecting that petitioners exercised complete control over N.G.’s educational activities and finances.  Petitioners assert that they have added N.G. to their health insurance plan and submit proof of current coverage.  Petitioners also submit an affidavit from N.G., in which she attests that petitioners alone “have been acting” as her parents; “given [her] a home, health insurance, cellular phone service, clothes, food, paid for all my bills, given me money to spend for fun”; and have generally “taken care” of her.  N.G. further indicates that her mother has “not given [her] any money or other type of financial support” since her return to the United States.  Respondents have not submitted any evidence to the contrary.

Respondent argues that the parent and custodian affidavits demonstrate that the reason N.G. was sent to live with petitioners “was to take advantage of the schools in the District.”  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 Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  A student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  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 Patel, 57 Ed Dept Rep, Decision No. 17,259).

The evidence in the record demonstrates that N.G. is not seeking to take advantage of respondent’s schools. Although petitioners’ custodial affidavit indicates N.G.’s desire “to improve her studies,” I do not find this language dispositive of N.G.’s mother’s intent for sending N.G. to live with petitioners.  In an affidavit, N.G.’s mother asserts that she is “a single[,] unemployed mother of 2 children” and “was forced to give up parental rights and custody of [N.G.] because [she could not] support her and [her] 10-year old daughter,” who is not the subject of this appeal.  N.G.’s mother further explains that she and her 10-year old daughter cannot leave Mexico at this time “because [they] do not have the travel papers necessary to leave Mexico and enter the United States.”  These barriers do not exist for N.G., who, as indicated above, is a U.S. citizen.  N.G.’s mother further avers that the student’s father is “an abusive alcoholic” who “physically, verbally, and emotionally abused [her] and [N.G.] and other members of [her] family for many years.”

Under the circumstances, I find that petitioners have adequately rebutted the presumption that N.H.’s residence is with her mother and conclude that her actual residence is with petitioners (see Appeal of Ramirez, 40 Ed Dept Rep 163, Decision No. 14,449 [petitioner adequately rebutted the presumption of parental residence where his nephews fled terrorism in their home country of Colombia; arrived with petitioner, their uncle, on B-1 “pleasure” visas; and intended to apply for asylum following expiration of the visas]; see generally Matter of Moncrieffe, 121 Misc2d 395; Sonya C. By & Through Olivas v. Arizona Sch. for the Deaf & Blind, 743 F.Supp. 700 [D.Ariz. 1990] [student’s U.S. “citizenship, physical presence in [a U.S. state], and wardship to long-time family friends was prima facie evidence of residence/domicile, entitling her to a free public education among other benefits and privileges”]).

Respondent further contends that N.G.’s mother’s explanations regarding N.G.’s father are not credible because she offered inconsistent statements concerning the father.  In matters of credibility, I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of Constantino Jr., 59 Ed Dept, Decision No. 17,764; Appeal of K.M. and T.M., 56 id., Decision No. 17,095).  Respondent alleges that N.G.’s mother’s original statement that N.G.’s father “abandoned us 9 years ago and we do not know anything about him” is inconsistent with her allegation on appeal that the father “recently discovered [N.G.’s] whereabouts and continue[s] to stalk and harass her and her family ....”  In a reply affidavit, N.G.’s mother avers that the student’s father abandoned the family nine years ago and that she was not initially forthcoming about N.G.’s father’s recent harassment of N.G. because she “did not want to disclose any information regarding the abuse my family and I suffered” to school officials.  N.G.’s mother elaborates that she “wanted to keep this private as much as possible and it is very difficult and painful for [her] to talk about.”  Consistent with her explanation, petitioner S.R. indicates in an affidavit that N.G.’s mother “was raised in a very loving, strong, and proud family and did not want to tell people about her husband’s abuse of her and [N.G.].”  On this record, I find that petitioners have provided clear and convincing evidence that reconciles any discrepancy between N.G.’s mother’s statements. 

Thus, for the above reasons, based on this record, I find that respondent acted in an arbitrary and capricious manner and its residency determination must be set aside.  In light of this argument, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the student to the schools of the district without payment of tuition.

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