Appeal of C.B-M., on behalf of her son I.M., from action of the Board of Education of the City School District of the City of Rochester, regarding residency.

Decision No. 16,844

(November 2, 2015)

Edwin Lopez-Soto, General Counsel, attorneys for respondent, Cara M. Briggs, Esq., of counsel

ELIA, Commission.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rochester (“respondent”) that her child is not a resident of the district.  The appeal must be dismissed.

Petitioner resides outside respondent’s district in the Webster Central School District.  The record indicates that I.M. began attending respondent’s School of the Arts (“SOTA”) in September 2013.  Petitioner asserts that she, I.M., and another child resided within the district for ten years, and that petitioner continues to own a home within the district.  Petitioner further asserts that they were forced to leave their in-district residence for a rental apartment in Webster, New York in August 2014 due to “personal, financial, and emotional problems.”

Petitioner claims that I.M. began residing with his maternal grandmother at her in-district address on September 19, 2014 pursuant to an “oral temporary guardianship agreement” which was formalized in writing on October 27, 2014.  Petitioner further asserts that she has surrendered parental control over I.M. to his grandmother until there is a change in her personal circumstances. 

The record indicates that, on or about September 19, 2014, and, based in part on conflicting information provided by petitioner in student field trip release forms, a SOTA secretary contacted petitioner regarding I.M.’s residency.  Subsequently, petitioner commenced a series of emails to respondent’s superintendent in which she expressed frustration over the circumstances under which I.M.’s residence was questioned, and to inquire whether there were any programs available for non-resident students to attend respondent’s schools.  In these emails, petitioner admitted that she and I.M. moved to Webster, and indicated that she still owns a home and pays taxes in respondent’s district.  Petitioner also indicated that, in order to keep I.M. enrolled in SOTA, she submitted to respondent paperwork transferring “educational custody” over I.M. to his grandmother.  Respondent’s superintendent responded by email dated September 21, 2014 and indicated that he would discuss petitioner’s concerns with an administrator from SOTA and respondent’s General Counsel.  He also indicated that some non-resident students may attend respondent’s schools through the Urban Suburban Interdistrict Transfer Program, but that the Webster Central School District, where petitioner resides, does not participate in that voluntary program.  He also indicated that some other non-resident students attend respondent’s schools, but they pay tuition.  A series of phone and email communications between petitioner and respondent continued during which respondent investigated the circumstances surrounding I.M.’s residence and provided petitioner an opportunity to provide information establishing residency in the district. 

By letter dated October 15, 2014, respondent’s Acting Executive Director of Student Equity and Placement and General Counsel together notified petitioner that, based on information provided by petitioner, I.M. did not meet the qualifications for residence and would be excluded from attending SOTA on October 24, 2014.  The letter also informed petitioner that, while under some circumstances non-resident students are permitted to attend with the payment of tuition, and in those cases the tuition exceeds $12,000, I.M. would not be permitted to attend SOTA as a non-resident student.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 4, 2014.

Petitioner contends that I.M. is a district resident because she continues to own and pay taxes on a home in the district and has temporarily relinquished custody and control of I.M. to her mother, who is a district resident.  Petitioner requests a determination that I.M. is a district resident and is entitled to attend respondent’s schools without the payment of tuition.

Respondent maintains that petitioner has failed to state a claim upon which relief may be granted.  Specifically, respondent contends that petitioner admits that she is not a district resident.  Respondent further asserts that the decision that I.M. is not a district resident was neither arbitrary nor capricious as it was supported by a rational and legitimate basis, and that petitioner was not denied any statutory or constitutional rights.

I must first address several procedural matters.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). 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.[1]  To the extent that petitioner now raises claims that respondent’s denial of the opportunity to pay tuition as a non-resident student was arbitrary and capricious, and that respondent’s refusal to admit I.M. on the basis of new documentation provided by his grandmother during the pendency of this appeal, such claims were known to petitioner at the time this appeal was filed and should have been included therein.

By letter dated January 13, 2015, petitioner requested permission to submit additional information contained in a document entitled “Memorandum of Law,” along with several additional documents including a signed but unsworn affidavit from I.M.  A memorandum of law should consist of 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 Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Moreover, Commissioner’s regulation §276.4 requires that petitioner serve a memorandum of law within 20 days after service of the answer, or 10 days after service of the reply, whichever is later.  Petitioner’s memorandum of law was served on respondent over one month after the service of the reply.  Therefore, to the extent that petitioner’s submission purports to be a memorandum of law, I have not considered the contents. 

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Within her January 13, 2015 request for permission to submit additional information, petitioner raises a number of claims, including that respondent is providing transportation to I.M. from his grandmother’s in-district residence to the non-public school he began attending following his exclusion from SOTA.  Petitioner has provided proof of service on respondent, and respondent has not objected to such submission and the consideration of additional materials.  Therefore, to the extent that the events described in the supplemental materials occurred after submission of petitioner’s reply and are directly related to the allegations previously raised by petitioner, I have accepted them pursuant to the provisions of Commissioner’s regulation §276.5 (Appeal of Bazemore, 41 Ed Dept Rep 449, Decision No. 14,742).

On July 19, 2015, petitioner submitted a letter to my Office of Counsel which similarly requests that I consider additional information.  Such letter reiterates the claim that respondent is providing transportation to I.M. to the non-public school in respondent’s district and further indicates that petitioner has relocated to Brooklyn, New York with by her older child and that I.M. remains in Rochester with his grandmother.  However, she does not provide any proof of service indicating that petitioner served a copy of these documents upon respondent (8 NYCRR §275.8[b]).  Accordingly, the additional documents have not been considered as part of the record.

The appeal must be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part, as follows:

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 §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 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 Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

Furthermore, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

Finally, 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).

The record indicates that petitioner sought to produce documents indicating a transfer of “educational custody” to her mother after respondent learned that petitioner and I.M. were no longer considered district residents.  It is clear that 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).

While petitioner alleges that she sought to transfer guardianship to her mother because of her “personal, emotional and financial problems,” petitioner fails to submit sufficient documentation to support such claims.  Petitioner’s submission of evidence of her receipt of short-term disability benefits which commenced several months prior to the date on which I.M. allegedly began living with his grandmother is not persuasive.  The record further indicates that prior to September 19, 2014, I.M. resided with petitioner in the out-of-district residence and used public transportation to travel from the Webster address to SOTA each day.  Additionally, the purported transfer of “educational custody” by a “Temporary Guardianship Agreement” is characterized by petitioner as a temporary transfer and bears an expiration date of June 28, 2015, and is therefore not permanent.

In fact, respondent submitted an affidavit from a secretary at SOTA attesting that September 19, 2014 was the date she contacted petitioner to inform her that, based on her prior conversations with I.M., he had moved to Webster, was riding the public bus each day from Webster to SOTA, would not be able to continue to attend SOTA and would need to enroll in the Webster Central School District.  The secretary also attested that petitioner thereafter told her that she planned to have I.M. stay with his grandmother Mondays through Fridays so he could continue attending SOTA.  On this record, it appears that petitioner arranged to have her son live with his grandmother for the purpose of taking advantage of respondent’s schools.

Furthermore, petitioner seeks to establish a transfer of custody by attaching to the reply a copy of a petition for custody of I.M., submitted by his grandmother to the Monroe County Family Court on September 19, 2014, yet not provided to my Office of Counsel until the filing of her reply papers on December 3, 2014, well after the filing of this appeal on October 28, 2014.  Custody may be legally transferred from a parent or guardian to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction.  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).  However, even if petitioner timely submitted the custody petition and sought to transfer custody for purposes other than taking advantage of respondent’s schools, on this record petitioner has not provided any evidence to indicate that an order has been issued by Family Court transferring custody to I.M.’s grandmother.

Petitioner additionally asserts that I.M. should be able to continue attending SOTA because she continues to own a home in respondent’s district.  As discussed above, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status.

The record indicates that, despite its determination that I.M. is not a district resident, respondent has inexplicably been providing transportation to I.M. from his grandmother’s in-district residence to the non-public school located within respondent’s district.  While the provision of transportation alone does not establish that I.M. is a district resident, respondent offers no explanation or basis for such decision, and I am troubled by this inconsistency in the record.  While I understand the parental concerns under these circumstances, on the record before me, I am constrained to find that petitioner has not met her burden of proving that I.M. is a resident of respondent’s school district.  She has not demonstrated that there has been a total and permanent transfer of custody and control of I.M.  As noted above, while petitioner has produced a “Temporary Guardianship Agreement” such document bears an expiration date of June 28, 2015, is clearly temporary, and as such does not establish that there has been a permanent and total transfer of custody.  On this record, petitioner has failed to rebut the presumption that the legal residence of I.M. is with petitioner, outside of the district, and I cannot find that respondent acted arbitrarily by determining that the student is not a resident of the district (see e.g., Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of L.B., 54 id., Decision No. 16,672; Appeal of Galay, Perez and Perez, 37 id. 128, Decision No. 13,821).

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

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on I.M.’s behalf at any time, should circumstances change, and present any additional information for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE