Appeal of JAIR ORTIZ, on behalf of his nephew YEISSON, from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 15,731

(March 7, 2008)

Student Advocacy, Inc., attorneys for petitioner, Jean M. Lucasey, Esq., of counsel

Ingerman Smith L.L.P., attorneys for respondent, Leslie J. Morsillo, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Ossining Union Free School District (“respondent”) that his nephew, Yeisson, is not a district resident.  The appeal must be sustained.

On October 2, 2007, petitioner, a district resident, requested that Yeisson be enrolled in respondent’s schools.  In support of his application, petitioner submitted a parent affidavit from Yeisson’s mother, who resides in Colombia, and a custodial affidavit.

By letter dated October 15, 2007, respondent’s superintendent indicated that she was in receipt of the parent and custodial affidavits and that a residency determination was forthcoming.  The letter invited petitioner to provide additional information no later than October 24, 2007.  Petitioner did not provide additional documentation by this date.

By letter dated October 25, 2007, respondent’s superintendent notified petitioner that his request to register Yeisson was denied because the custodial arrangement was deemed temporary.

By letter dated November 15, 2007, petitioner asked that the residency determination be reconsidered and provided the district with a guardian affidavit wherein petitioner indicated that Yeisson would live with him for the foreseeable future.  This appeal ensued.  Petitioner’s request for interim relief was granted on December 5, 2007.

Petitioner contends that Yeisson is a district resident and is entitled to attend respondent’s schools tuition-free.  Petitioner asserts that English is his second language, that he did not fully understand the meaning of two questions on the custodial affidavit, and that this misunderstanding led the district to erroneously conclude that Yeisson would reside with him on a temporary basis.

Respondent contends that the appeal is untimely.  Respondent further asserts that Yeisson is residing with petitioner solely to take advantage of district schools and that there has not been a permanent transfer of custody and control to petitioner.  Respondent maintains that its determination was rationally based and reasonable.

I must first address several procedural issues beginning with petitioners’ reply.     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 E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  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.

Petitioner claims that respondent’s answer is untimely.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (seeAppeal of the City School Dist. of the City of Plattsburgh, 45 Ed Dept Rep 350, Decision No. 15,345; Appeal of Scanlon, et al., 41 id. 114, Decision No. 14,632; Appeal of Bronico, 32 id. 54, Decision No. 12,755).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Bonham, 44 Ed Dept Rep 179, Decision No. 15,140).  Respondent was required to serve its answer on December 17, 2007.  However, it was served on December 18, 2007, one day late.  Respondent contends that it inadvertently miscalculated the required date of service and that it faxed a copy of its answer to petitioner’s counsel, at her request, on December 19, 2007, at or around the time she would have received it had it been timely mailed on December 17, 2007.  Respondent also contends that petitioner was not prejudiced by its error because a stay had been issued and Yeisson was attending school.  In light of these circumstances and, absent prejudice to petitioner, I have considered respondent’s answer.

Respondent asserts that the appeal must be dismissed as untimely.  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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).  The record indicates the October 25, 2007 residency determination was mailed to petitioner.  However, there is no evidence in the record to indicate when petitioner actually received the determination.  As such, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be October 31, 2007.  Petitioner thus had to commence his appeal on or before November 30, 2007, which he did.  Consequently, I will not dismiss the appeal as untimely.

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 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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

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 Nelson, 44 Ed Dept Rep 20, Decision No. 15,082).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

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 Hardick, 41 Ed Dept Rep 300, Decision No. 14,693) or the hardships of single parenting (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).  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 Langer, 33 Ed Dept Rep 139, Decision No. 13,003).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  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 St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

As evidence of his custody of Yeisson, petitioner submits a parent affidavit from Yeisson’s mother which indicates that Yeisson went to live with petitioner because his mother lacked the economic means to provide for him and she knows petitioner is responsible and will help Yeisson build a good future.  The parent affidavit further indicates an intent to transfer permanent custody to petitioner and that petitioner is to be notified of any issues pertaining to Yeisson’s health, welfare and education.  In the custodial affidavit, petitioner states, in Spanish, that he is responsible for all of Yeisson’s medical bills, that he provides Yeisson with food, clothing and all other necessities and that he is to be notified of any issues regarding Yeisson’s health, welfare and education.  Petitioner further states that Yeisson intends to reside with him for four years and that the duration of the living arrangement is indefinite.  Petitioner maintains that he did not fully understand all questions on the custodial affidavit because it was written in English and Spanish is his native language.  Therefore, to clarify his statements, petitioner submitted a guardian affidavit wherein he indicated that Yeisson will live with him for the foreseeable future.

In support of its position, respondent submits an affidavit from its registrar who avers that she credited petitioner’s statements in the custodial affidavit because she had a number of conversations, in Spanish, with petitioner regarding the registration process.  She also states that, based upon the fact that Yeisson had arrived in the United States only days before registration on a tourist visa and the absence of factors connecting him to the community, she concluded that the parent and custodial affidavits did not demonstrate an intent to have Yeisson permanently reside with petitioner in the district.

Based on the record before me, I conclude that Yeisson’s residence is with petitioner. The record indicates that petitioner provides for Yeisson’s needs and makes decisions concerning his welfare.  I further find that the arrangement is not temporary, nor was it entered into for the purpose of taking advantage of respondent’s schools.  Under these circumstances, and in light of petitioner’s apparent misunderstanding of certain questions on the custodial affidavit, I find that petitioner has rebutted the presumption that Yeisson resides with his mother in Colombia and has established Yeisson’s intent to remain in the district.  Accordingly, respondent’s determination that Yeisson is not a district resident is arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS SO ORDERED that respondent allow Yeisson Ortiz to attend school in the Ossining Union Free School District without the payment of tuition.

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