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Decision No. 16,527


 Appeal of C.B., on behalf of N.H., from action of the Board of Education of the Orchard Park Central School District regarding residency.

Decision No. 16,527

(August 26, 2013)

Hodgson Russ, LLP, attorneys for respondent, Andrew J. reedman, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals a determination of the Board of Education of the Orchard Park Central School District (“respondent”) that N.H. is not a district resident. The appeal must be dismissed.

N.H. has attended school within respondent’s district since November 2011. Petitioner, who is N.H.’s mother’s boyfriend, resides in Orchard Park, New York, within respondent’s district (“Orchard Park address”).N.H.’s mother maintains a separate residence in Alden, New York, outside respondent’s district (“Alden address”). In support of his claim that N.H. is a district resident, petitioner submitted a copy of a lease allegedly executed between petitioner and N.H.’s mother for the rental of an apartment at the Orchard Park address.

Respondent asserts in its answer and accompanying affidavit that in the fall of 2012, N.H.’s mother contacted respondent’s transportation department to request transportation for N.H. from the Alden address. Respondent denied her request and informed her that a student could not be transported to school from a location that was outside the district’s boundaries. In December 2012, respondent became suspicious that N.H. did not actually reside within the district. On January 15, 2013, the superintendent notified N.H.’s mother that respondent had made an initial determination that N.H. was not a district resident and invited N.H.’s mother to provide the district with evidence that N.H. was in fact a district resident. In response, N.H.’s mother provided respondent with a copy of her driver’s license which listed the Orchard Park address and a copy of a new lease agreement which was unsigned by petitioner, the alleged landlord.

Because of the conflicting accounts of N.H.’s actual residency, respondent commenced an investigation which included surveillance of the Alden address and the Orchard Park address on three different occasions in March 2013.

The investigator began surveillance early in the morning and never observed N.H. or N.H.’s mother leaving or entering the Orchard Park address. However, on all three mornings, the investigator did observe N.H. and N.H.’s mother leave the Alden address, enter a vehicle, drive off, and arrive at school.

By letter dated April 8, 2013, respondent notified N.H.’s mother that N.H. was not a district resident and would no longer be permitted to attend school in the district. This appeal ensued. Petitioner’s request for interim relief was granted on April 22, 2013.

Petitioner argues that N.H. is a district resident and therefore entitled to attend its schools tuition-free. Attached as an exhibit to the petition is a document entitled “NYS Kinship Navigator” signed by N.H.’s mother and dated April 9, 2013, in which N.H.’s mother appears to designate petitioner as N.H.’s caregiver pursuant to New York State General Obligations Law.

Respondent contends that petitioner has failed to establish a clear legal right to the relief requested. Respondent maintains that N.H. is not a district resident and that its residency determination was not arbitrary and capricious and was reasonable, especially in view of the surveillance. Respondent asserts that it was never offered any documentation in support of petitioner’s claim that N.H.’s mother has relinquished total, permanent custody and control to petitioner and the documentation petitioner presents in the instant appeal fails to establish such relinquishment.

Initially, I must address a procedural issue. Petitioner has submitted an additional document entitled “ANSWER” which appears to be a reply and consists of affidavits from both petitioner and N.H.’s mother. Even if I were to accept petitioner’s additional papers as a reply,I cannot consider them because they are untimely. 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 the10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803;Appeal of Jacoby, 47 id. 321, Decision No. 15,710).Respondent’s affidavit of service indicates that the answer was served by mail on May 6, 2013. Petitioner’s reply should therefore have been served no later than May 20,2013. Petitioner served his additional papers on June 12, 2013. The reply, therefore, is untimely and has not been considered.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No.15,924). “Residence” for purposes of Education Law §3202is 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 Naab, 48 Ed Dept Rep 484,Decision No. 15,924). 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773). 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 Polynice, 48 Ed Dept Rep490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773).

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 (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 [1991]; Appeal of Polynice, 48Ed Dept Rep 490, Decision No. 15,927). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48id. 142, Decision No. 15,820).

Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366,Decision No. 15,726; Appeal of Mendoza, 47 id. 285,Decision No. 15,698).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On this record, petitioner has failed to rebut the presumption that N.H.’s residency is with his mother in Alden, outside respondent’s district. As noted above, while petitioner has produced a notarized “NYS Kinship Navigator,” through which N.H.’s mother purports to designate C.B. as N.H.’s caregiver and person in parental relation for purposes of his education from April 9, 2013to July 1, 2013, C.B. admits in his petition that N.H.’s mother “has not surrendered parental control” over N.H. and that both he and N.H.’s mother provide for N.H.’s food, medical and other needs and exercise control over his “activities and behavior.” Moreover, the temporary nature of the caregiver designation is inconsistent with petitioner’s assertion that N.H. will reside with him until he graduates from high school. I also note that this document appears to have been executed on April 9, 2013,the day after respondent made its determination in this matter (see e.g., Appeal of Lee, 52 Ed Dept Rep, Decision No. 16,453).

Even if petitioner had established the requisite permanent and total transfer of custody and control, the record before me does not support a finding that N.H. actually resides with petitioner. Where a court of competent jurisdiction has legally transferred custody of a child, and the child actually lives with the court-appointed guardian, the Commissioner will accept the court’s order as determinative for residency purposes, and will not look behind the court’s decision to determine whether the custody transfer is bona fide (Appeal of Naab,48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R.,45 id. 550, Decision No. 15,412). In this case, respondent conducted surveillance on three weekday mornings in March2013 at both the in-district and out-of-district addresses. Each surveillance began at approximately 6:00 a.m. and ended after the school day began, but neither N.H. nor his mother was ever observed entering or leaving petitioner’s in-district residence. However, N.H. was observed leaving the out-of-district residence with his mother to go to school on all three occasions and N.H. was present in school on each day that surveillance occurred. Respondent has also submitted a note from N.H.’s mother dated February13, 2013 indicating that N.H. was late for school that day “due to car problems.” Other than a copy of a lease agreement purporting to rent C.B.’s in-district residence to N.H.’s mother through September 2013, petitioner has submitted no evidence indicating that N.H. actually resides with him.

Based on the record before me, I cannot find respondent’s determination to be arbitrary and capricious. While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of N.H. at any time, should circumstances change, and may present for respondent’s consideration any new information bearing on the question of residence.