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Decision No. 16,143

Appeal of S.S., on behalf of SANJIT, SUNIL and SURAJ F., from action of the Board of Education of the Tuckahoe Union Free School District regarding residency.

Decision No. 16,143

(August 30, 2010)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Tuckahoe Union Free School District (“respondent”) that her grandchildren, Sanjit, Sunil and Suraj F., are not district residents.  The appeal must be dismissed.

Petitioner owns a home in Bronxville within respondent’s district (“Bronxville address”) where she claims to reside.  She also owns a home in Mount Vernon outside the district (“Mount Vernon address”) where her daughter – the children’s mother – resides.  In September 2009, petitioner enrolled Sunil and Suraj in the district’s elementary school.  Sanjit apparently attended private school and received transportation as a district resident.  Upon enrolling Sunil and Suraj, petitioner filled out a residency questionnaire in which she indicated that she was the children’s parent.

In January 2010, the district clerk questioned the children’s residence in the district.  Thereafter, one afternoon she personally observed Sunil and Suraj exit a school bus at their bus stop in the district, enter a van driven by their mother and proceed to the Mount Vernon address.  Further surveillance was conducted which reported petitioner and the children at the Mount Vernon address on six different days between February 22 and March 16, 2010.  Throughout the surveillance, the investigator presumed petitioner was the children’s mother.

Believing petitioner to be the children’s mother, respondent’s residency designee notified petitioner by letter dated March 19, 2010, of her determination that petitioner and her “children” were not district residents.  The letter stated that the determination was based on the surveillances, that the children could continue to attend school in the district upon payment of tuition and that, if petitioner was not interested in the tuition option, Sunil and Suraj would be excluded from school after March 26, 2010 and Sanjit would no longer receive transportation.  Petitioner signed for the letter on March 25, 2010 at the Mount Vernon address.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 13, 2010.

Petitioner asserts that she is the children’s guardian, that they reside with her in respondent’s district and that they are entitled to attend the district’s schools without the payment of tuition.  She further contends that respondent did not afford her sufficient time to respond to the determination letter prior to excluding the children from school.

Respondent asserts that petitioner misrepresented that she was the children’s mother at the time of registration, that the record supports its determination that the children are not district residents and that its determination was proper.

Initially, I must address petitioner’s combined reply and memorandum of law.  The document sets forth factual statements and legal argument.  Respondent objects to the timing and the content of the submission. 

To the extent that petitioner’s submission sets forth factual statements in response to respondent’s answer, it constitutes a reply.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Peterson, 46 Ed Dept Rep 558, Decision No. 15,595; Appeal of E.B. and J.B., 46 id. 338, Decision No. 15,526).  Petitioner’s reply should have been served on April 23, 2010.  However, the combined document was not served until April 28, 2010.  Petitioner offers, as excuse for her delay, that she did not know that a reply was a pleading separate from a memorandum of law.  That is not good cause for delay and, accordingly, I have not considered that portion of the combined document that constitutes a reply.

To the extent that petitioner’s submission contains legal argument, it has been accepted as a memorandum of law.  However, a memorandum of law should consist of only arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  I, therefore, limited my review of the memorandum of law to the legal arguments relating to the petition.

I also note that respondent’s answer refers to an affidavit of respondent’s counsel purportedly filed in opposition to petitioner’s request for a stay.  Respondent failed to file such affidavit with my Office of Counsel.  Thus, no such affidavit was considered in this appeal.

Petitioner maintains that she was not afforded sufficient opportunity to respond to the district’s March 19, 2010 letter excluding the children from school on March 26, 2010.  Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).

In this instance, the record contains no evidence that respondent’s designee afforded petitioner the opportunity to submit information concerning the children’s residency prior to the March 19, 2010 determination.  Accordingly, I admonish the district to comply henceforth with the procedures established in §100.2(y) of the Commissioner’s regulations.

Nonetheless, since petitioner has had ample opportunity here to present evidence in support of her residency claim, I will address 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 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).  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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293). 

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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Jeudy, 46 Ed Dept Rep 512, Decision No. 15,579).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Moyer, 46 Ed Dept Rep 290, Decision No. 15,511; Appeal of Santana, 46 id. 255, Decision No. 15,499; Appeal of Werner, 45 id. 14, Decision No. 15,244). 

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 (8 NYCRR §275.10; Appeals of Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

It is undisputed that the children’s mother resides outside the district.  Petitioner has not presented sufficient evidence establishing that there has been a total transfer of custody and control of the children to petitioner.  Petitioner asserts that her son-in-law became incarcerated in 2005.  At that time, she states, she took “primary” guardianship and financial responsibility for her grandchildren.  She further states she is their “primary” caregiver.  Petitioner, however, does not assert that she has full authority and responsibility with respect to the children’s support or custody. 

Moreover, petitioner submits a letter dated October 17, 2006 in which her daughter states that she is authorizing petitioner “to take temporary guardianship of my sons...” It further states, “I trust my mother’s judgment and decisions for my sons when I am unavailable ...” (emphasis supplied).

A second letter by petitioner’s daughter, notarized on February 22, 2010, states that she is giving custody of her sons to petitioner and that “I will continue to be active in their lives however [sic] due to financial hardship it has become difficult for me to care for them solely” (emphasis supplied).

Petitioner has not submitted any other primary evidence (such as bills or insurance records) relating to the financial support of the children or any other aspect of their custody and control.  Instead, petitioner submits statements from five individuals – a pizza delivery man, a business owner, a neighbor, the coach of the town football team and the father of one of the boy’s friends – who each state that they either saw the boys with petitioner or understood petitioner to be the boys’ caregiver or guardian.  None of the statements are sworn, nor do they tend to establish that any transfer of custody and control actually occurred.  Moreover, much of the registration questionnaire petitioner filled out that is relevant to a determination of custody and control is left blank.  The information that petitioner did provide is inaccurate or inconsistent.  At one point she indicates that she is the parent with whom the children resides.  Elsewhere she states that neither the mother or father provides financial support.

Petitioner submits a third document by her daughter – an affidavit sworn on March 29, 2010, stating that she has initiated formal guardianship proceedings in Westchester County Family Court.  Neither party has indicated that the proceedings have yet concluded.

On this record I find petitioner has failed to establish the children’s mother has relinquished custody and control to petitioner.  Petitioner has failed to rebut the presumption that the children’s residence is that of their mother outside the district.  Therefore, I find no basis to substitute my judgment for that of respondent. 

While the appeal must be dismissed, I note that petitioner may reapply to the district for admission on the children’s behalf at any time and may present for respondent’s consideration any new information bearing on the question of residence, including any court order subsequently obtained from the Family Court.  In the event that she does so, I remind respondent of its obligation, pursuant to §100.2(y) of the Commissioner’s regulations, to provide her with an opportunity to submit information prior to making its determination of whether the children are district residents.

In light of this disposition, I need not address the parties’ remaining contentions.