Appeal of B.H., on behalf of her grandson S.M., from action of the Board of Education of the City School District of the City of Batavia regarding residency.

Decision No. 15,291

(August 18, 2005)

The Legal Aid Society of Rochester, Inc., attorneys for petitioner, Patti W. Moss, Esq., of counsel

Harris Beach, PLLC, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Batavia ("respondent") that her grandson, S.M., is not a district resident. The appeal must be sustained.

Petitioner, a district resident, is the grandmother of S.M. In April 2000, when S.M. was three years old, petitioner was awarded custody of him pursuant to an order of a juvenile court judge in the state of Tennessee. The order provided that his mother, D.M., would have "reasonable visitation" with him. In December 2000, petitioner and her grandson moved from Tennessee to Batavia. In 2001, D.M. moved in with her mother and S.M. in Batavia. S.M. began attending respondent's school in September 2002. At this time both petitioner and D.M. were recognized by respondent as contacts for S.M.

In February 2004, with petitioner's permission, D.M. withdrew S.M. from respondent's schools, and took him to Georgia to live with her. In October 2004, petitioner requested that S.M. return to Batavia to live with her. Pursuant to this request, D.M. returned S.M. to petitioner' s home. On October 24, 2004, both D.M. and petitioner met with district officials to enroll S.M. in school, and both completed custody affidavits. D.M. returned to Georgia later that month.

On November 3, 2004, S.M. was temporarily enrolled in elementary school, pursuant to respondent's policy of enrolling new students for a 60-day period. By letters dated November 12 and 19, 2004, respondent's Business Administrator informed petitioner that S.M. was not a resident of the district and in order to remain in its school, petitioner would have to pay non-resident tuition for S.M. Petitioner obtained an extension for S.M. to attend school until January 3, 2005.

By letter dated January 6, 2005, the Business Administrator again made a determination that S.M. was not a district resident. Petitioner submitted a new affidavit to the district on March 11, 2005, further explaining her role as guardian and caretaker of her grandson. By letter dated April 8, 2005, the Business Administrator still found that S.M. was not a resident. This appeal ensued. Petitioner's request for interim relief was granted on April 26, 2005.

Petitioner contends that she has had legal custody and control of S.M. since he was three years old. She asserts that it was only with her permission that her daughter took S.M. to Georgia, and when it did not work out, she had him return to live with her. Petitioner also claims that D.M. has lived with her at times, and because D.M. did not work, she was the person who communicated with the school on S.M.'s behalf.

Respondent maintains that petitioner does not have custody and control of S.M. as evidenced by the affidavit completed by D.M. It also contends that allowing D.M. to take S.M. to Georgia demonstrates petitioner's lack of custody or control. Respondent claims that the reason S.M. returned to New York from Georgia was because he was suspended from his school and wanted to take advantage of respondent's schools. Respondent also objects to petitioner's reply and alleges that the appeal is untimely.

Before proceeding to the merits, I will address the procedural issues. Respondent claims that petitioner's reply should not be considered because it does not limit itself to responding to affirmative defenses. 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 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). I have reviewed the reply, and I have considered it, because it responds directly to new information set forth in respondent's answer.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Respondent claims this appeal is untimely because the final residency determination was issued in January 2005, and this appeal was filed in April 2005. However, petitioner submitted a new affidavit to the district in March 2005 and it issued a new residency determination in April 2005. Therefore, this appeal is timely.

Education Law �3202(1) provides, in pertinent part:

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). In this case, petitioner is the legal guardian of her grandson. There is nothing in the record to indicate that the Tennessee order granting her custody of S.M. has been modified or overturned.

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Y.R., 42 Ed Dept Rep 376, Decision No. 14,886; Appeal of Maxwell, 42 id. 134, Decision No. 14,799) or the hardships of single parenting (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). In such cases, 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 (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).

Respondent claims that the sole reason for S.M.'s return from Georgia was his suspension from the Georgia school. However, the Georgia school's record indicates that S.M. was suspended from September 27, 2004 until October 1, 2004. His mother withdrew him from that school on October 24, 2004. Thus, S.M. was enrolled in school at the time of his return to Batavia. Additionally, petitioner has had custody of S.M. since he was three years old, at least two years before he was eligible for public school. Petitioner has supported S.M. financially, with little assistance from his parents. The Genessee County Department of Social Services recognizes S.M. as petitioner's legal dependent, and she receives for him Medicaid and food stamps from the county. These facts negate respondent's assertion that S.M. resides with petitioner solely to take advantage of the district's schools.

Under these circumstances, I find that S.M.'s actual residence is with petitioner. Accordingly, respondent's determination will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow S.M. to attend school in the City School District of the City of Batavia without the payment of tuition.

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