Appeal of LAURA COAGER, on behalf of her niece BRITTANY WEAVER, from action of the Board of Education of the Saugerties Central School District regarding residency.

Decision No. 16,198

(January 20,2011)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Judith Crelin Mayle, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the Saugerties Central School District (“respondent”) that her niece, Brittany Weaver, is not a district resident entitled to attend its schools tuition-free.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district.  Brittany’s mother and step-father are residents of North Carolina who are currently living in Germany pursuant to military orders.  According to petitioner, Brittany began living with her in September 2010 “for stability.”  Petitioner also explains that Brittany wants to be a lawyer and “needs to be in one place for the rest of her high school years.”  Petitioner asserts that Brittany will continue to live with her for “at least 3 years ... before going into college.”

On or about September 27, 2010, petitioner attempted to enroll Brittany in respondent’s high school, alleging that she resides with petitioner within the district.  Petitioner contends that on September 28, 2010, respondent’s assistant superintendent denied her request to enroll Brittany in respondent’s schools.

The record indicates that in October 2010, petitioner met with district staff to provide further information concerning Brittany’s residency.  Thereafter, by letter dated October 20, 2010, respondent’s superintendent notified petitioner of his final determination that Brittany was not a district resident and advised petitioner that she could appeal this decision pursuant to Education Law §310.  The superintendent stated that in reaching his determination, he considered several documents submitted by petitioner, including: (1) a Special Power of Attorney “transferring temporary custody” of Brittany to petitioner for one year, and (2) an October 15, 2010 letter from Brittany’s mother indicating that she is “not relinquishing total and permanent care, custody and control” of Brittany to petitioner and that Brittany is living with petitioner so that she can complete her education in one high school and make lifelong friends.  The superintendent also noted that, while petitioner submitted documentation that she is a district resident, she failed to submit “an affidavit or similar document pertaining to the care, custody and control that she will provide to [Brittany and] has also represented that the parents will continue to provide for the child’s medical coverage and expenses while the child is residing with [petitioner].”  Finally, he informed petitioner that Brittany could enroll in respondent’s schools as a non-resident, tuition-paying student.  This appeal ensued.

Petitioner argues that Brittany is entitled to attend respondent’s schools tuition-free because her mother has surrendered custody and control of Brittany to her.

Respondent contends that it properly determined that Brittany is not a district resident.  While respondent admits that Brittany currently resides with petitioner, respondent maintains that there has been no permanent and total transfer of custody and control of Brittany to petitioner.

I must first address a procedural issue.  Together with its memorandum of law, respondent submitted affidavits from the superintendent and assistant superintendent and two new exhibits.  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, additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  Respondent did not seek prior permission to submit the affidavits and additional exhibits, which relate to events that occurred before submission of respondent’s answer, and offers no explanation why such information could not have been submitted with the answer.  Therefore, I have not considered the affidavits and additional exhibits.

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 §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).

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 Polynice, 48 Ed 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, 48 id. 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 the record before me, petitioner has not met her burden of proving that there has been a total and permanent transfer of custody and control of Brittany to her.  As noted above, while petitioner has produced a Special Power of Attorney from Brittany’s mother, such document does not establish that there has been a permanent and total transfer of custody.  Although a power of attorney may be considered when arguing a transfer of custody, it is not the equivalent of a court ordered transfer of custody (seeAppeal of Riccinto, 46 Ed Dept Rep 39, Decision No. 15,435).  Moreover, while this document purports to authorize petitioner to “take and maintain custody” of Brittany and to “do all acts necessary or desirable” to maintain Brittany’s health, education, and welfare, it also states that it shall become null and void on September 23, 2011.  I note that the temporary nature of this document is inconsistent with petitioner’s assertion that Brittany will reside with her for “at least 3 years....”

Further, the record contains a copy of Brittany’s mother’s October 15, 2010 letter in which she admits that she is “unwilling to give up custody of Brittany because she is my daughter, and Brittany is afforded the benefits of a child raised in the military.  To relinquish my rights to her would be to relinquish her rights as a military child.  This would not be beneficial to Brittany....”  While petitioner asserts that she is “supporting” and providing “food, shelter, and clothing” for Brittany, and that she “exercises control” over Brittany’s “activities and behavior,” petitioner also admits that Brittany’s mother “is not out [of] the loop at all and will not be.  Her mother’s biggest concern is that [Brittany] keeps her [A]rmy benefits.”  Petitioner thereby admits that Brittany’s mother has not permanently transferred custody and control of Brittany to petitioner.

I also note that the record indicates that the sole reason Brittany is living with petitioner is to take advantage of respondent’s schools.  In her October 15, 2010 letter, Brittany’s mother admits that she wants Brittany to attend respondent’s high school in order to “maintain a balance of stability for her remaining high school years” and make lifelong friends.

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 Brittany at any time and may present for respondent’s consideration any new information bearing on the question of residence.

THE APPEAL IS DISMISSED.

END OF FILE.