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Decision No. 15,918

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. 15,918

(May 18, 2009)

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

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Malverne Union Free School District (“respondent”) that their grandson, J.S-J., is not a district resident.  The appeal must be sustained.

Petitioners are the legal guardians of J.S-J. and reside in West Hempstead within respondent’s district.  During the 2007-2008 school year, J.S-J. attended the fifth grade at respondent’s middle school.  By letter dated May 14, 2008, respondent’s director of pupil personnel services (“director”) informed petitioners that J.S-J. was not a district resident and would be excluded from school after June 27, 2008.  Thereafter, petitioners and their attorney met with the director and advised her that J.S-J. continued to reside with petitioners within the district and that circumstances were unchanged since 2006 (seeAppeal of D.A.J. , 46 Ed Dept Rep 28, Decision No. 15,431).  Respondent denied petitioners’ appeal at its meeting on July 9, 2008.  This appeal ensued.  Petitioners’ request for interim relief was granted on August 6, 2008. 

Petitioners contend that they are J.S-J.’s legal guardians by court order dated April 5, 2006.  Petitioners also contend that J.S-J. resides with them in respondent’s school district, as he has since birth.  Petitioners assert that they are J.S-J.’s permanent caretakers who provide for his food, shelter, and other necessities, including medical and dental care.

Respondent admits that petitioners reside within its district boundaries.  Respondent also acknowledges that petitioners were appointed as J.S-J.’s legal guardians by court order on April 5, 2006, but contends that their guardianship petition should have been denied.  Specifically, respondent maintains that the guardianship arrangement was intended to promote the educational wishes of J.S-J. and his parents, to the detriment of the district.  Respondent contends that J.S-J. actually resides with his parents in Hempstead, New York, outside the geographical boundaries of the district.  Respondent also requests that I disregard petitioner’s reply because it raises new claims and introduces a new exhibit. 

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).

In an appeal to the Commissioner, a 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; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

It is undisputed that petitioners are J.S-J.’s legal guardians by virtue of the guardianship order issued by the Family Court.  Therefore, J.S-J. is presumed to reside with petitioners.  To rebut this presumption, there must be evidence of a total, and presumably permanent, transfer of custody and control to someone else (Appeal of Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293), in this case, J.S-J.’s parents.  While respondent continues to argue about the underlying reason for the guardianship order, I will not consider such challenge to judicial authority (seeAppeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412).    

Respondent relies on a surveillance report in which J.S-J. was observed on eight mornings in May 2008 exiting his parents’ house in Hempstead and being driven to petitioners’ residence.  In response, petitioners explained that J.S-J. spent time with his mother on those dates to receive tutoring from her during a ten week suspension when he was provided only 45 minutes of instruction a day in respondent’s Twilight program after regular school hours.  Petitioners affirmed that J.S-J. spent no more evenings away from their residence after the suspension ended.  Respondent’s investigator also observed J.S-J. exiting the middle school on two afternoons in March 2008 and being driven in petitioners’ car to petitioners’ residence.

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 (seeAppeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  I find that respondent’s evidence of some occasional visitation with J.S-J.’s parents is insufficient to overcome the presumption that J.S-J. resides with petitioners, his legal guardians.  Moreover, respondent has failed to demonstrate that anyone other than petitioners are providing financial support, food, shelter and other necessities for J.S-J..    Accordingly, on the record before me, I am constrained to find that respondent’s determination is based on insufficient evidence and is arbitrary and capricious.   


IT IS ORDERED that respondent permit J.S-J. to attend school in the Malverne Union Free School District without the payment of tuition.