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Decision No. 13,578

Appeal of CHARLOTTE MOUNTAIN, on behalf of her children MARK, KRISTOPHER, and TIMOTHY MOUNTAIN, from action of the Board of Education of the Briarcliff Manor Union Free School District, Superintendent Frances Wills, Assistant Superintendent Kenneth Smith, and Elementary School Principal Jon Drescher regarding residency.

Decision No. 13,578

(March 21, 1996)

Bozeman & Trott, P.C., attorneys for petitioner, Bruce L. Bozeman, Esq., of counsel

Raymond Kuntz, P.C., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the actions of Charles K. Trainor, Nancy Goldmark, Marcia Seredinsky, Arlene Rosen, and Joan Austin, constituting the Board of Education of the Briarcliff Union Free School District, Superintendent Frances Wills, Assistant Superintendent Kenneth Smith, and Elementary School Principal Jon Drescher ("respondents"), resulting in the exclusion of her children from respondents' schools on the basis of residency. The appeal must be sustained.

Petitioner contends that she and her children were wrongfully forced out of their home in respondent school district by the owner of the property. She maintains that she has a valid lease which has not been terminated and is seeking to enforce her rights to the residence. She claims that she and her children are staying with her mother temporarily while she seeks to regain access to her home, but that she never relinquished their claim to their residence. She argues that they therefore remain district residents and asks the Commissioner to overrule respondents' decision that her children are not entitled to attend district schools on the basis of residency. In addition, petitioner contends that she and her children are homeless and were district residents when they became so, entitling them to attend district schools pursuant to Commissioner's regulations.

I have exercised broad discretion in this case to allow both parties to submit ample documentation in support of their arguments. However, while I reviewed petitioner's memorandum of law, I did not consider the portions of it that contain new allegations. A memorandum of law may not be used to belatedly add new assertions that were not part of the pleadings (Appeal of Coombs, 34 Ed Dept Rep 253).

Certain facts are undisputed. Petitioner and her children, Mark, Kristopher, and Timothy established a residence at 76 Stephenson Terrace, Briarcliff Manor, in respondent school district on November 15, 1994 pursuant to a Westchester County, Department of Planning, Section 8 Housing Voucher Program Residential Lease. At some point, the owner of the property, Edward Hamill, lived with petitioner at the subject property. Numerous incident reports have been investigated by town police at the residence, and petitioner and Hamill had filed criminal assault charges against each other. In September 1995, Westchester County notified petitioner that her housing benefits were being terminated because the terms of the lease had been violated by Hamill staying at the property. In late November 1995, petitioner and her children left the Briarcliff Manor address and have been staying with her mother in the Lakeland Central School District. On November 22, respondent Assistant Superintendent Smith met with petitioner concerning her residency status. By letter dated December 15, respondent Smith informed petitioner that her children could not continue to attend district schools after December 22, 1995 because she and her children had moved out of the district. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on January 26, 1996.

Respondents contend that on November 22 petitioner told them that she had voluntarily left her residence, that she was seeking a new lease within the district, and that she would return with a new lease by December 1. When respondents failed to hear from her, they determined that petitioner and her children should be excluded because they were nonresidents. Respondents argue that petitioner and her children left voluntarily and that their ties are with the Lakeland school district where they are now staying and where they lived before moving to Briarcliff Manor. Respondents contend that petitioner cannot afford to live at the subject property without a housing subsidy and that petitioner admitted to receiving a notice from Hamill that he intended to terminate her lease.

Petitioner maintains that she has a valid lease which has not been terminated. Upon being notified in September that her housing benefits were being terminated, she requested a fair hearing. She alleges that she intends to appeal the determination, issued on January 24, 1996, that although she is entitled to benefits, she cannot use them at 76 Stephenson Terrace. Petitioner maintains that she was forced to leave her home because she feared for her personal safety and because the owner of the property turned off the heat and subsequently changed the locks. She alleges that her belongings remain in the house and that she intends to pursue her claim to live at that property. She claims that she has attempted to maintain her children's friendships in the district and her role as a cub scout mother. She contends that although she has been pursuing alternative housing within the school district, she was unable to enter into a new lease while the determination concerning her housing benefits was pending. She claims that staying with her mother is temporary while she regains access to her home or can obtain alternative housing in the district.

Education Law '3202(1) provides that a child "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 only to district residents (Appeal of Allen, 35 Ed Dept Rep 112, Appeal of Warburton, 35 id. 74). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Reilly, 35 Ed Dept Rep ___, Decision No. 13,550 dated February 5, 1996; Appeal of Allen, supra).

For purposes of Education Law '3202, a person can have only one legal residence (Appeal of Britton, 33 Ed Dept Rep 198; Appeal of Wadas, 21 id. 577). A residence is not lost, moreover, until it is abandoned and another is established through action and intent (Appeal of Britton, supra; Appeal of Edward K., 32 Ed Dept Rep 112; Appeal of Richards, 25 id. 38). Nor does a person's temporary absence from one's district of residence necessarily constitute establishment of a residence in the district where temporarily located or abandonment of one's permanent residence. Accordingly, students whose families lose their permanent home due to circumstances beyond their control, who are forced to make temporary arrangements outside their district of residence and whose actions reflect an intent to return to the district, do not lose their right to attend school in the district where they previously lived. To determine one's intent, evidence regarding the family's continuing ties to the community and their efforts to return are relevant (Appeal of Kenneth R., 30 Ed Dept Rep 297; Appeal of Tynan, 28 id. 4; Appeal of Woodward, 27 id. 442).

Based on the record before me, I find that petitioner and her children are district residents entitled to attend respondents' schools. It is apparent that since November 1995, while petitioner and her children have been staying with her mother, they have not voluntarily vacated their previous residence nor been legally evicted therefrom. A Mount Pleasant Police Department report dated November 20, 1995 states:

Mountain in HQ requesting to retrieve her property. Mountain allowed entry with consent by Hamill into 76 Stephenson Terr to retrieve some of her property while patrol stood by. . . . Mountain is still a tenant of the residence and Hamill was advised that if he wanted her removed he would have to obtain an eviction notice. Mountain voluntarily left the residence after retrieving some of her belongings.

Respondent focuses on the fact that the police report states that she left "voluntarily." That interpretation is too narrow. As the facts of this case surely demonstrate, an individual need not be removed by physical force to render their removal involuntary.

Similarly, the January 24, 1996 letter to petitioner from the county advising her that her housing benefits would be continued, but that she could not use them at 76 Stephenson Terrace, stated: "You will be contacted . . . as to when your existing premises must be vacated." (Petitioner alleges that she is appealing this determination.)

Whatever the merits of petitioner's right to maintain her residence at 76 Stephenson Terrace, she has not abandoned the residence nor relinquished her claim to a right to return there. Therefore, unless and until petitioner is properly evicted from the residence, vacated therefrom by the county, or voluntarily establishes another residence outside of respondent school district, she is a resident and her children are entitled to attend its schools tuition-free. In light of this determination, it is not necessary for me to address respondents other allegations. Accordingly, respondents' determination will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondents allow Mark, Kristopher, and Timothy Mountain to attend school in the Briarcliff Manor Union Free School District without the payment of tuition.

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