Appeal of SUNITA PATEL, on behalf of her niece SEJAL PATEL, from action of the Board of Education of the Pittsford Central School District regarding residency.

Decision No. 17,259

(November 17, 2017)

Pheterson, Stern, Calabrese, Neilans & Spatorico, LLP, attorneys for petitioner, Steven J. Pheterson, Esq., of counsel

Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pittsford Central School District ("respondent") that her niece, Sejal (hereafter, the “student”), is not a district resident.  The appeal must be dismissed.

Petitioner resides within the Pittsford Central School District.  Petitioner’s sister, the student’s mother, resides at a location outside of respondent’s district, allegedly within the Brighton Central School District (“Brighton”) and the student’s father lives at an unknown location.  Petitioner states that the student moved in with petitioner’s family because the student’s mother was unable to care for her.  Pursuant to a guardianship agreement executed on July 28, 2011, petitioner attempted to enroll the student in respondent's schools for the 2011-2012 school year.

On September 9, 2011, respondent’s director of Student Services (“director”) determined that the student was not a district resident.  Furthermore, the director determined that there was not a “complete permanent transfer of care, custody and control” of the student to petitioner.  This appeal ensued.

Petitioner contends that her sister is a single mother and is unable to take care of her daughter due to an erratic employment schedule and also that it would be in the student’s best interests to live with petitioner.  Petitioner states she pays for the student’s medical insurance, her “needs,” and gives her a weekly allowance.  Petitioner asserts that the transfer was not for educational purposes.  She maintains that there was a complete and permanent transfer of care, custody and control of the student which is expected to last until the student’s high school graduation.  Petitioner asserts that it would be in the student’s best interests to not have to change schools during the academic year.  Furthermore, petitioner indicates that her own two children attend respondent’s schools and use school bus transportation, but she must transport the student to and from Brighton herself.

Respondent asserts that its determination was not arbitrary and capricious and that petitioner failed to satisfy her burden of proof.  Respondent contends that there has not been a total and permanent transfer of custody and control of the student to petitioner.  Respondent further argues that, in any event, any transfer was impermissibly for educational purposes.  Finally, respondent objects to the reply submitted by petitioner.

I will first address the procedural matters.  Respondent asserts that petitioner has not submitted a verified reply to its answer but, instead, has improperly submitted a reply affidavit – an impermissible pleading under the Commissioner’s regulations.  Respondent also contends that the reply affidavit goes beyond the permissible scope of a reply. 

Regulations of the Commissioner of Education require that a petitioner submit a reply to new material and affirmative defenses contained in an answer (8 NYCRR §§275.3 and 275.14).  Although respondent is correct that a reply affidavit itself is not specifically contemplated as a reply under Commissioner’s regulations, I have accepted it for consideration in the appeal.  However, respondent further contends that petitioner’s reply contains new material that was not raised in the original petition and may not be introduced in the 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 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).  Therefore, while I have reviewed petitioner’s reply affidavit, 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.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner’s niece was not permitted to enroll in respondent’s school district.  Petitioner neither sought interim relief nor was such an order issued pursuant to §276.1 of the Commissioner’s regulations.  The school year ended and, subsequently, it appears that petitioner’s niece graduated.[1]  The matter, therefore, is academic, warranting dismissal.

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on 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).

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).

Here, petitioner has failed to rebut the presumption that the student legally resides with her mother within Brighton.  In an appeal to the Commissioner, a 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; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Other than conclusory statements, the record contains little or no documentation to support petitioner’s assertions.  Petitioner submits a notarized guardianship agreement executed by petitioner and a statement by the student’s mother, contending that the transfer of the student’s custody was due to the student’s mother’s erratic work schedule.  However, petitioner failed to submit any proof establishing that assertion, such as current or prior work schedules.  Similarly, although petitioner claims that she supports the student financially, she submits no documentary evidence to establish that claim.  Finally, I note that the transfer was to continue only until the student graduated from high school.  On this record, I do not find that petitioner has met her burden of demonstrating that there has been a total and permanent transfer of custody and control of the student.  Based on the record before me, I cannot conclude that respondent's determination is arbitrary, capricious or unreasonable and will not substitute my judgement for that of respondent.

THE APPEAL IS DISMISSED.

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