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Decision No. 14,438

Appeal of GAIL MIRIAM SMITH, on behalf of her son, SAMUEL JOHN SMITH, from action of the Board of Education of the Canajoharie Central School District regarding residency.

Decision No. 14,438

(August 18, 2000)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent Kathy Ann Wolverton, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Canajoharie Central School District ("respondent") that her son is not a resident of the district. The appeal must be dismissed.

Petitioner alleges that she resides within respondent's district at 1487 State Highway 162, Sprakers, New York ("the 1487 address") and that her son is staying with his paternal grandparents at 1575 State Highway 162, Sprakers, New York ("the 1575 address") which address is also located within respondent's district, in order to avoid potential health hazards from construction dust and debris while renovations are completed at petitioner's residence.

By letter dated March 31, 2000, respondent’s superintendent informed petitioner that he had information that she and her son may not live in the district, but instead resided at an address located outside the district in Central Bridge, New York. The superintendent requested that petitioner complete an enclosed student residency questionnaire and return it to the district within seven calendar days of the date of his letter. The superintendent also indicated that petitioner was entitled to submit or present any other information concerning her son's right to attend school in the district to the superintendent for his consideration. By letter dated April 7, 2000, the superintendent issued his determination that, based upon the information gathered by the district and specified in his letter, petitioner's son was not a district resident and was, therefore, not eligible to attend its schools. In a letter dated April 6, 2000, which apparently was received by the district after the superintendent's April 7 letter had already been sent, petitioner asserted that she was in fact a district resident and enclosed a copy of her school tax bill for the 1487 address property. In response, the superintendent sent a letter dated April 12, 2000, stating that the tax bill did not verify petitioner's residency in the district because the payment of property taxes does not constitute residency, and that the evidence before him indicated that petitioner did not actually live at the 1487 address. The superintendent further informed petitioner that his decision that petitioner's son was not a district resident stood and that the child's last day of attendance in the district would be April 14, 2000.

Petitioner commenced this appeal by service of a copy of the petition on respondent on April 20, 2000. Petitioner contends that her son is a resident of the district and entitled to attend its schools without the payment of tuition. On April 28, 2000, I granted petitioner's request for a stay of respondent's determination pending a final decision in this appeal.

Respondent contends that it conducted a reasonable investigation that revealed petitioner's son is not a district resident and resides with petitioner outside the district at a Central Bridge address.

Respondent objects to petitioner's attempt to introduce additional allegations and exhibits in her reply "affidavit". The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been included in the petition (Appeal of Crowley, et al., 39 Ed Dept Rep __, Decision No. 14,345; Appeal of Krantz, 38 id. 485, Decision No. 14,077; Appeal of Rampello, 37 id. 153, Decision No. 13,830). While portions of petitioner's reply permissibly respond to new material set forth in the answer, I have not considered those portions that contain new information or materials which are not responsive to new materials or affirmative defenses set forth in the answer, or that buttress allegations in the petition or belatedly add assertions that should have been in the petition. This includes petitioner's new allegations, raised for the first time in her reply, concerning respondent's alleged failure to schedule a meeting of its Committee on Special Education.

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 Waite, 39 Ed Dept Rep 20, Decision No. 14,160; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926).

It is presumed that a child resides with his or her parents (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). However, this presumption may be rebutted in a proper case (Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465; Appeal of McMullan, 29 id. 310, Decision No. 12,304). To rebut this presumption, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of control to someone residing within the district (Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729). Where the facts of the situation contradict the claim of a complete transfer of custody, the presumption of residence with the student's parent is not rebutted (Appeal of Galay, et al., 37 Ed Dept Rep 128, Decision No. 13,821; Appeal of Simond, supra, at p. 121).

Upon the record before me, petitioner has failed to rebut the presumption that her son resides with her. Even if I accept petitioner's contention that her son currently resides with his paternal grandparents at the 1575 address, it is clear from the record that his stay there is only temporary and that there has been no total, permanent transfer of control of the child to the grandparents. Petitioner states in the petition that her son resides with his grandparents because her residence at the 1487 address is undergoing renovations. Petitioner states that she maintains almost daily contact with her son and that she provides the child with food and clothing.

Having determined that the child's legal residence is with petitioner, the issue now turns to whether petitioner is a resident of respondent's district. Residency is based, in part, upon an individual's physical presence as an inhabitant within the district and upon the individual's intent to remain (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016; Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795). For the purposes of Education Law "3202, a person can have only one legal residence (Appeal of Gannon, 37 Ed Dept Rep 135, Decision No. 13,823; Appeal of Elliott, 36 id. 70, Decision No. 13,660; Appeal of Britton, 33 id. 198, Decision No. 13,022).

Petitioner submits as exhibits to her petition: a copy of her New York State driver’s license listing the 1487 address; and copies of school tax bills for the 1487 address and the 1575 address. However, I do not find these exhibits to be persuasive since, as respondent notes, the driver’s license was issued after the district's initial inquiries as to her son's residence and, therefore, places in issue her motivation in obtaining a license listing the 1487 address. Furthermore, as respondent also notes, the fact that petitioner pays school property taxes does not, in itself, establish residency (Appeal of C.D., 37 Ed Dept Rep 676, Decision No. 13,955).

The record establishes that respondent's residency determination is based upon the following facts. Petitioner's six year old son was enrolled in respondent's kindergarten program on February 10, 2000. On the enrollment form, petitioner listed the family's address as 1487 State Highway 162, Sprakers, New York, which is located within respondent's district.

In March 2000, the elementary school principal informed the superintendent that the child's grandparents had informed the principal that the child lived with his parents at a location outside the district in Central Bridge, New York.

The superintendent sent the district transportation director, accompanied by the superintendent of buildings and grounds, to the 1487 address. They informed the superintendent that the house appeared uninhabitable and vacant; no one responded when they knocked on the door; there were no curtains in the windows, no furniture was observed in the house, and there were no signs of traffic in the driveway or from the driveway to the house steps.

The elementary school secretary contacted the local electric company and was informed that there was no electrical power hook-up to the house, although there was an electrical hook-up to a barn on the property. The principal's examination of the telephone directory revealed that petitioner and her husband were listed at an out-of-district address on Cliff Street in Central Bridge, New York. The principal contacted the Central Bridge Post Office and was told that there was a post office box registered in the name of petitioner and her husband. The Sprakers Post Office informed the principal that there was no post office box or rural route delivery to the Smiths in Sprakers. On at least six occasions in April (April 4, 5, 6, 7, 10 and 11), the school bus driver stopping at the 1487 address was met by the child and his father who were waiting in a car parked at that address. Upon the child's boarding of the school bus, the father drove away.

Petitioner did not submit a completed questionnaire within 7 days as requested in the superintendent's March 31, 2000 letter. While petitioner now states for the first time in her reply "affidavit" that she never received the questionnaire, I note that the superintendent's letter makes several references to the questionnaire as an enclosure and states that "[f]ailure to complete the enclosed questionnaire and/or provide information concerning your child's right to attend school in the district shall result in a presumption that the children [sic] reside with you and that your residence is Cliff Street, Central Bridge and not within the Canajoharie Central School District." There is nothing in the record to indicate that petitioner notified the district that she did not receive the questionnaire or otherwise attempted to obtain a copy of the questionnaire. In her letter dated April 6, 2000, in response to the superintendent's March 31, 2000 letter, petitioner merely stated that she lives in the district; that she specifically moved to her property in the Town of Root so that her son could attend school in the district; and enclosed a copy of her school tax bill for the 1487 address. Petitioner makes no mention of the allegedly missing questionnaire.

Petitioner also alleges for the first time in her reply "affidavit" that she did not receive the superintendent's April 7, 2000 letter until April 19, 2000, after her petition was "drawn up" and that, therefore, the issues presented in that letter were not addressed in the petition. However, I note that petitioner could have corrected this deficiency since the affidavit of service indicates that the petition was not served until the next day, April 20, 2000, and petitioner was still well within the thirty day time limitation period, pursuant to 8 NYCRR "275.16, for service of her petition.

The record indicates that petitioner was given an opportunity to submit any available evidence she had to establish residency in the respondent’s district. The record indicates that while petitioner did not complete the questionnaire referenced in the superintendent's March 31, 2000 letter, she did provide a copy of her school property tax bill.

In view of the evidence before respondent as set forth above, I find that respondent's determination that petitioner and her son are not residents of the district was neither arbitrary, capricious nor unreasonable. Accordingly, respondent's determination will not be set aside (Appeal of Digilio, supra; Appeal of Garbowski, 36 Ed Dept Rep 54, Decision No. 13,653).

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the district for admission on her son's behalf at any time, and upon sufficient proof of the child's residency within the district, the child would be entitled to attend the district's schools on a tuition-free basis (Sewanhaka CHSD v. Sobol, et al.; S.Ct., Albany Co., Special Term; Toracca, J.; Judgment granted dismissing petition to review; March 4, 1994, n.o.r.; aff’d 210 AD2d 675 [3rd Dept] 1994; Appeal of Smith, 39 Ed Dept Rep 28, Decision No. 14,163; Appeal of Blagrove, 32 id. 629, Decision No. 12,937).

Furthermore, in the event that respondent subsequently determines to admit petitioner's son to its schools upon a reapplication by petitioner, I remind respondent of its responsibilities pursuant to Education Law "4402 and 8 NYCRR "200.4, with respect to the procedures for referral of a student to the committee on special education.

Finally, with respect to respondent’s request that petitioner be required to compensate respondent for the period petitioner’s son allegedly attended respondent’s schools while not a resident, the Commissioner of Education does not have any statutory authority to make a finding awarding student tuition (Application of Pierrelus, 37 Ed Dept Rep 502, Decision No. 13,913). Respondent may seek payment for a nonresident enrolled in its schools in a court of competent jurisdiction (Bd. of Educ. of Lawrence Union Free School District v. Gaffney, 233 AD2d 357; Application of Pierrelus, supra).