Appeal of L.B., on behalf of her nephew J.P., from action of the Board of Education of the Marlboro Central School District regarding residency.

Decision No. 16,672

(September 26, 2014)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Marlboro Central School District (“respondent”) that her nephew, J.P. (“the student”), is not a district resident.  The appeal must be dismissed.

On September 9, 2013, petitioner, a district resident, submitted a registration packet to respondent for her nephew.  At the request of the district, on September 11, 2013, petitioner submitted a custodial affidavit that she had signed on September 4, 2013 (“custodial affidavit”).  The custodial affidavit stated that the student had been living with petitioner since July 27, 2013, and that it was “undetermined” how long the student would be residing with her.  Petitioner also stated in the custodial affidavit that the student was living with her “for better school education” and to help her at home due to her health issues.  The affidavit also stated that the student’s mother and petitioner would be providing food, clothing, medical coverage and other necessities and that petitioner would assume full responsibility for the student’s education and medical care, including financial responsibilities.  The custodial affidavit stated that the student also lived at an address in Albany, New York. 

On September 11, 2013, respondent also received a parental affidavit from the student’s mother, signed on September 10, 2013.  The mother’s affidavit indicated that petitioner and her husband had care, custody and control of the student since July 27, 2013.  The mother’s affidavit also stated that the student lived with petitioner because he needed a “better education” and to help petitioner “due to her illness.”  The mother’s affidavit stated that the student would live with petitioner “until further notice” but that the student would continue to live with his mother at her Albany address every other weekend.  Like petitioner’s custodial affidavit, the mother’s affidavit reflected that both she and petitioner would provide the student with food, clothing, medical coverage and other necessities, and it indicated that the student’s mother was releasing to petitioner full responsibility, including financial responsibility, over educational and medical matters for the student. 

Attached to the mother’s September 11, 2013 parental affidavit was a notarized letter dated September 10, 2013[1] in which she stated that petitioner and her husband had permission to care for the student and to “sign any [e]ducational and [m]edical papers for him.”  The letter also stated that petitioner and her husband had “full custody” of the student “while he is in their care.”

On September 11, 2013, respondent’s superintendent denied petitioner’s request to enroll the student in the district.  The superintendent avers that he based his decision on his determination that the affidavits submitted to respondent reflected that the reason the student was to reside with petitioner was to receive a better education, and the affidavits indicated that the student did not intend to live in the district permanently.

On September 11, 2013, petitioner submitted a second custodial affidavit signed by her on that day.  The second custodial affidavit now stated that the student would be living with petitioner “until further notice.”  It reiterated that the reason the student was living with petitioner was for a better education and to help her at home.  While the second custodial affidavit was changed to state that only petitioner and her spouse would be providing food, clothing, medical coverage and other necessities for the student, it still stated that the student would live at his mother’s Albany address every other weekend. 

The student’s mother also submitted a second parental affidavit, bearing the same date as the first (September 10, 2013).  The second parental affidavit was identical to the first, except that it now stated that only petitioner and her spouse would be providing food, clothing, medical coverage and other necessities for the student. 

The superintendent avers that he again denied petitioner’s request on the afternoon of September 11, 2013, for the same reasons he had first denied it. 

On September 16, 2013, petitioner submitted a third custodial affidavit to respondent.  This third affidavit stated both that the student would be residing with petitioner until July 27, 2014, and that the student would live with petitioner until her medical situation changed or until the end of the school year.  The third affidavit no longer stated that one of the reasons the student was living with petitioner was for a better education.  Instead, the affidavit stated that the student was living with petitioner only “due to health issues.”  The student’s mother did not submit a third parental affidavit.  The superintendent avers that he again denied petitioner’s request on September 16, 2013. 

On September 16, 2013, petitioner wrote to the board appealing the superintendent’s determination that the student was not a resident of the district and could not attend its schools.  In her appeal, petitioner stated that she had “a lot of health issues” and the student helped her around her home.  The board met on September 19, 2013 regarding petitioner’s appeal.  By letters dated September 24, 2013, the district clerk informed petitioner and the student’s mother that the board upheld the superintendent’s determination and that the student was not permitted to attend respondent’s schools.  The board determined that the affidavits stated that the student was living with petitioner to receive a better education and that the intent to live with petitioner was not permanent but was “until further notice.”  This appeal ensued.  Petitioner’s request for interim relief was denied on October 8, 2013.

In this appeal, petitioner contends that the student intends to reside with her and her husband “for the next year, or until his birth mother’s financial situation improves.”  Petitioner also contends that the student does not reside at any address other than her address in respondent’s district.  Petitioner maintains that the student is not living with his mother due to the mother’s current economic situation and resides with petitioner due to her health issues.  Petitioner maintains that she and her husband are providing food, shelter and clothing for the student; are exercising control over his “activities and behavior;” and that the student’s mother has surrendered control over the student.  Petitioner alleges that the student has regular verbal contact with his mother and visits her “when time and finances permit.”  Petitioner further asserts that five of the student’s siblings live at home with his mother.  Petitioner requests a determination that the student is a resident of respondent’s district and is entitled to attend respondent’s schools tuition-free.

Respondent asserts in its answer that its decision to deny enrollment to the student because he is not a resident of the district was rationally based.  Respondent contends that the custodial and parental affidavits reflect that the student is only temporarily living in the district and that the parent has no intention of transferring permanent custody to petitioner and her husband.  Moreover, respondent asserts that the purpose of the student living with petitioner is for a better education. 

I must first address a procedural issue. By letter dated October 18, 2013, petitioner, who is not represented by counsel, submitted documents entitled “Verified Answer and Memorandum of Law.”  Petitioner’s “Verified Answer” appears to be in the nature of a reply to respondent’s answer.  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).  Similarly, 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).  Therefore, while I have reviewed the documents, I have not considered those portions that contain new allegations.

Turning to the merits of the case, 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).

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 Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of Dennis, 47 id. 327, Decision No. 15,712).  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 A Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652).

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).

     Here, petitioner asserts that the student resides with her and respondent does not dispute that petitioner resides in its district.  However, a showing of a child’s physical presence in a school district, standing alone and without regard to the retention of parental control, is not sufficient to rebut the presumption that a child resides with his or her parent (Caitlin v. Sobol, 77 NY2d 552, 561 [1991]).  In this case, although there are inconsistencies in the three sets of custodial affidavits submitted by petitioner to respondent, all three (as well as the two parental affidavits submitted by the student’s mother), are unequivocal that the transfer of custody, care and control of the student is not permanent in nature.  Indeed, several of the affidavits state that the student will be living with petitioner “until further notice” or for an “undetermined” amount of time.  The most recent custodial affidavit stated that the student would only reside with petitioner until July 27, 2014, the end of the school year, or until petitioner’s health issues changed.  Moreover, both parental affidavits and two of the three custodial affidavits state that the student resides at his mother’s out-of-district residence every other weekend, further undermining petitioner’s assertions that the student resides with her and that his mother has transferred permanent and total care, custody and control of the student to petitioner.  In this appeal, petitioner also claims, for what appears to be the first time, that the student will live with her and her husband “for the next year, or until his birth mother’s financial situation improves” and that the student only visits his mother “when time and finances permit.”  However, these new statements are inconsistent with those provided to respondent in September 2013 and none of the statements provided by petitioner indicate that permanent and total custody and control over the student has been transferred to petitioner (see e.g., Appeal of Galay and Perez, 37 Ed Dept Rep 128, Decision No. 13,821).

Additionally, the affidavits submitted to respondent contain conflicting information as to whether the student’s mother and petitioner share responsibility for the student’s food, clothing, and other necessities, or whether petitioner bears sole responsibility for these items.  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 L.H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Nelson, 44 id. 20, Decision No. 15,082).  Here, the initial custodial and parental affidavits stated that petitioner and the student’s mother were sharing these financial responsibilities.  The second custodial affidavit was changed to state that petitioner alone was bearing those responsibilities.  The second parental affidavit was identical to the first except that the student’s mother whited out the portion which stated she was sharing financial responsibility for the student’s necessities and left only petitioner’s name.

On this record, petitioner has failed to rebut the presumption that the student’s legal residence is with his mother outside the district and I cannot find that the district acted arbitrarily by determining that the student is not a resident of the district (see e.g., Appeal of Galay and Perez, 37 Ed Dept Rep 128, Decision No. 13,821).  In light of this disposition, I need not consider respondent’s claim that the student is residing with petitioner solely to take advantage of the district’s schools.

Finally, although not entirely clear, petitioner appears to argue that, because respondent allegedly permitted the student’s brother to attend its schools based on a custodial affidavit she submitted in or about December 2005, respondent is now estopped from denying the student’s admission to its schools based on the custodial and parental affidavits submitted in this case.  However, the fact that respondent may have allowed the student’s brother to attend its schools in the past does not bind or estop respondent from making a different determination in this case (see e.g., Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).  It is well-settled that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).

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

THE APPEAL IS DISMISSED.

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