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Decision No. 15,385

Appeal of MARGARET RAMROOP, on behalf of her nephew DILLON RAMROOP, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 15,385

(March 21, 2006)

Ingerman Smith, L.L.P., attorneys for respondent, Robert A. Papa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District ("respondent") that her nephew, Dillon, is not a district resident. The appeal must be dismissed.

On or about October 31, 2005, petitioner, who resides in respondent's district, attempted to enroll Dillon in respondent's schools. She submitted a parental affidavit dated October 25, 2005 from Dillon's father, who stated that he resides in Florida but was giving custody of Dillon to petitioner until he completed his arrangements to move to New York, which had been unexpectedly delayed. Petitioner also submitted a custodial affidavit dated October 29, 2005 stating that Dillon would live with her indefinitely, that she would provide all food, clothing, and other necessities, and that she assumed full responsibility and medical care for him.

By letter dated November 3, 2005, the district's attendance coordinator notified petitioner that Dillon did not qualify as a candidate for registration. The coordinator determined that there was insufficient evidence that petitioner had total and permanent custody and control of Dillon, that he intended to remain in the district, or that the transfer was not solely for educational purposes. This appeal ensued. Petitioner's request for interim relief was denied on December 6, 2005.

Petitioner maintains that Dillon resides with her and is entitled to attend respondent's schools tuition-free. Respondent contends that petitioner lacks standing, that the petition fails to state a claim upon which relief may be granted, and that Dillon is not a resident of the district.

I must first address two procedural issues. Petitioner submitted an "Answer to Respondent's Request for Denial of Stay and Dismissal of Petition." Although not labeled a reply, it appears that petitioner may have meant this document to serve as a reply (seeAppeal of Trapani, 40 Ed Dept Rep 653, Decision No. 14,576). Respondent objects to this document, asserting that there is no provision in the Commissioner's regulations for this type of submission and that the document raises new facts and issues. A liberal interpretation of the rules is appropriate where, as here, the petitioner is not represented by counsel, there is no evidence of prejudice to respondent and respondent does not assert any prejudice (Appeal of Metze, 42 Ed Dept Rep 40, Decision No. 14,768; Appeal of Smith, 40 id. 172, Decision No. 14,452; Appeal of Tanzer, 39 id. 797, Decision No. 14,384). Thus, I will treat this submission as a reply.

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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the submission, I have not considered those portions containing new allegations or exhibits.

As to the issue of standing, an individual may not maintain an appeal pursuant to Education Law �310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Bermudez, 41 id. 355, Decision No. 14,712). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, 39 id. 562, Decision No. 14,311). In this case, petitioner is a resident of respondent's district and alleges that Dillon resides with her. In addition, respondent's November 3, 2005 letter to petitioner notified her of her right to appeal the determination to the Commissioner of Education. I find, therefore, that petitioner may bring an appeal to challenge respondent's action (Appeal of Bermudez, 41 Ed Dept Rep 355, Decision No. 14,712;Appeal of Thomas, 41 id. 84, Decision No. 14,622).

The appeal, however, must be dismissed on 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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). 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 L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

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 I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930; Appeal of L.P., 43 id. 12, Decision No. 14,901). 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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

In this case, both the petition and parent affidavit state that Dillon's father gave petitioner custody of Dillon until he moves to New York. While petitioner indicates that she provides all food, clothing, and other necessities, and that she assumes full responsibility and medical care for Dillon, the record indicates that this is a temporary arrangement. Accordingly, the presumption of parental residence has not been rebutted. I therefore find that respondent's determination -- that permanent custody and control have not been transferred to petitioner -- was not arbitrary or capricious, and Dillon is not entitled to attend respondent's schools tuition-free.