Appeal of OLHA BUROVA, on behalf of her grandson ANDREI LOZINSKI, from action of the Board of Education of the Lindenhurst Union Free School District regarding residency.

Decision No. 16,979

(October 18, 2016)

Guercio & Guercio, LLP, attorneys for respondent, Reesa F. Miles, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Lindenhurst Union Free School District (“respondent”) that her grandson is not a district resident.  The appeal must be dismissed.

The record indicates that, in June 2015, petitioner requested admission to respondent’s schools for her grandson, Andrei Lozinski (“Andrei”), at which time petitioner represented that Andrei lived with her in Lindenhurst, New York (“in-district address”).  The record indicates that, although petitioner was provided with a registration packet on three occasions in June and July of 2015, petitioner did not complete or submit a registration packet for Andrei.  On July 2, 2015, petitioner submitted a power of attorney in support of her residency application.  Petitioner subsequently submitted an English translation of this document to the superintendent on July 16, 2015.

On July 29, 2015, respondent held a residency hearing at which petitioner, Andrei, and petitioner’s son Vitaliy Burov were present.  At that time, petitioner submitted a library card issued to Andrei and a copy of Andrei’s birth certificate and passport in support of her residency claim. Petitioner also submitted a tax bill, mortgage statement, and sewer bill to establish her residence at the in-district address.  Petitioner testified that the student’s parents are divorced, and that the student’s father’s location was unknown.  The district introduced a copy of the original power of attorney as well as its English translation at the hearing.  Petitioner testified that the English translation was accurate, and confirmed that the power of attorney was time-limited and would expire on May 21, 2017. 

By letter dated July 31, 2015, respondent’s residency officer informed petitioner of her determination that Andrei was not a district resident and was, therefore, not entitled to attend respondent’s schools on a tuition-free basis.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 21, 2015.

Petitioner asserts, inter alia, that Andrei has resided with her at the in-district address since May 2015, and that he intends to remain there for at least ten years. She further claims that she supports Andrei, provides him with food, shelter and clothing and exercises control over him.  Petitioner argues that Andrei’s mother, who resides in Ukraine, executed a power of attorney for Andrei which grants petitioner the right to make medical and educational decisions, among other rights, on Andrei’s behalf. Petitioner requests a determination that Andrei is a resident of respondent’s district and is entitled to attend its schools on a tuition-free basis.

Respondent contends that its determination was not arbitrary and capricious, and, therefore, must be upheld. Respondent further contends that there has not been a total and permanent transfer of custody and control to petitioner and that Andrei is residing in the district for the sole purpose of attending the schools of the district. Accordingly, respondent argues that petitioner has failed to meet her burden of establishing a clear legal right to the relief requested.

I must first address the procedural issues. Petitioner, who is not represented by counsel, submitted a letter dated October 9 in the nature of a reply to respondent’s answer.  Respondent contends that petitioner’s reply is defective as it is not verified, is not single-spaced, and does not contain numbered paragraphs as is required for pleadings by §275.3(c) of the Commissioner’s regulations.

Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  In addition, 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).  Petitioner’s reply is not verified as required by §275.5 and attempts to buttress allegations in the petition as well as to add assertions that should have been in the petition.  Therefore, I have not considered petitioner’s reply (see Appeal of Roth, 55 Ed Dept Rep, Decision No. 16,872; Appeal of a Student with a Disability, 46 id. 102, Decision No. 15,454).  Accordingly, I have not considered respondent’s sur-reply.

Turning to 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).

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).  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).

On the record before me, petitioner has not carried her burden of establishing that there has been a total and permanent transfer of custody and control over Andrei from his mother to petitioner.  Petitioner submitted a power of attorney to the district to support her claim that she is supporting Andrei, that she exercises control over him, and that his mother has surrendered parental control.  However, the power of attorney is time-limited, expiring in May 2017, and may be terminated at any time prior thereto.  The time-limited and conditional nature of this document prevents it from being considered a total transfer of custody and control to petitioner (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  Moreover, such document does not evidence the student’s intent to permanently reside in the district; rather, it merely gives certain authority to petitioner until May 2017 at the latest (see Appeal of C.S., 54 Ed Dept Rep, Decision No. 16,697).  The record further indicates that, at the residency hearing, petitioner testified that she would continue to consult with Andrei’s mother regarding medical and educational decisions.  Accordingly, on this record, petitioner has failed to rebut the presumption that Andrei’s residency is with his mother in Ukraine (see Appeal of Chorro, 44 Ed Dept Rep 50, Decision No. 15,095).

The record also indicates that the sole reason Andrei came to live with petitioner is to attend school in respondent’s district.  At the residency hearing, petitioner admitted upon direct examination that the reason Andrei is living with her is so that he may attend schools in respondent’s district.  Additionally, in her affidavit in opposition to petitioner’s request for a stay, respondent’s registrar states that, while meeting with petitioner in July 2015, petitioner stated that Andrei was living with her for the sole purpose of attending respondent’s schools.  Petitioner has submitted no evidence to rebut this assertion and the record therefore demonstrates that Andrei is staying with petitioner to attend respondent’s schools tuition-free (see Appeal of Guevara, 54 Ed Dept Rep, Decision No. 16,634; Appeal of Schillaci, 53 id., Decision No. 16,570).  Previous Commissioner’s decisions have found that, where there are overriding reasons for establishing one’s residence apart from one’s parents, aside from taking advantage of the educational programs of the district, and all the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (see e.g., Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208).  However, as described above, the indicia of residency have not been established; specifically, petitioner has failed to demonstrate a permanent and total transfer of custody and control to her, and no such overriding reason(s) has been alleged in this case.

Accordingly, on this record, petitioner has not rebutted the presumption that Andrei’s residence is with his mother (see Appeal of Shillaci, 53 Ed Dept Rep, Decision No. 16,570; Appeal of Arreguin, 50 id., Decision No. 16,088; Appeal of Brunot, 35 id. 402, Decision No. 13,584).  I find no basis upon which to set aside respondent’s determination.

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

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on Andrei’s behalf at any time, should circumstances change, and to present any documentary evidence for respondent’s consideration regarding legal transfer of custody or other bona fide reason(s) for establishing residence apart from his parents consistent with 8 NYCRR §100.2(y) as amended, effective as a permanent rule on July 1, 2015.

THE APPEAL IS DISMISSED.

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