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Decision No. 13,652

Appeal of DIANE SOMMA, on behalf of her daughters, KRISTINA DEVOE and GINA SOMMA, from action of the Board of Education of the Wallkill Central School District regarding residency.

Decision No. 13,652

(August 13, 1996)

Anderson, Banks, Curran & Donoghue, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Wallkill Central School District ("respondent") that her daughters are not entitled to attend district schools based on residency. The appeal must be sustained.

The question of Kristina's residency first arose in late February 1996, when she told the high school assistant principal that she was living with her aunt. By letter dated February 29, 1996, respondent's high school principal notified petitioner that an interim decision had been made that Kristina was not a district resident and that a hearing was scheduled at which she could present information. After a hearing on March 15, 1996, respondent's assistant superintendent notified petitioner that her children were not entitled to attend district schools because she is not a district resident. Respondent advised petitioner that if she did not establish residence in the district by April 19, 1996, her children would be excluded as of April 22, 1996, later extended until May 1, 1996. This appeal ensued.

Petitioner contends that she and her children have lived in respondent's school district for 2 1/2 years. She claims that they were forced from their apartment due to flooding in January 1996 and that since that time she and her children have been staying with her sister, Debra Greig, who also lives within the district. She claims that her sister is her daughters' guardian, providing food and shelter and exercising control over their activities and behavior, and that she has surrendered parental control. She alleges that she stays there approximately four days a week and stays with a friend in Washingtonville the rest of the time because of inadequate accommodations at her sister's house and because Washingtonville is closer to her job in Middletown. She maintains that her belongings are stored at her sister's house while she looks for a two-bedroom apartment for herself and her daughters within respondent's district. She argues that her children are district residents and asks the Commissioner to overrule respondent's decision that they are not entitled to attend district schools.

Respondent alleges that petitioner has been a nonresident for the entire 2 1/2 year period and that no other exception to the residency requirement has been met. In an affidavit accompanying the petition, respondent's assistant superintendent Anthony Argulewicz alleges that petitioner lives in her own home in Washingtonville and points out discrepancies in petitioner's statements concerning phone numbers and mailing addresses. Respondent relies on a conversation with the children's uncle (their father's brother) who told them that petitioner is living in a home she co-owns in Washingtonville. Petitioner acknowledges that she owns the house, but asserts that it is rented out. Respondent alleges that the difference in commuting mileage to Middletown from Mount Pleasant or Washingtonville is not significant and enclosed copies of newspaper listings to show that two-bedroom apartments are available in the district. Respondent also points out that petitioner's actions are inconsistent with her statement that she has surrendered custody and control of her children.

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 305; 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 (Appeal of Mountain, 35 Ed Dept Rep 382). 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 no evidence that petitioner was residing outside of respondent's school district for the entire 2 1/2 year period as respondent alleges. To the contrary, at the hearing petitioner produced a paycheck stub with her River Road address (within the district) to which the hearing officer responded, "There is no question that you were on River Road since the start . . we are looking at the time frame from the end of January to right now." I therefore conclude that petitioner and her daughters were district residents through January 1996. As stated above, temporary living arrangements, whether within or outside of the district, do not alter that status. Unless and until petitioner establishes another permanent residence outside of respondent's school district, she is a resident and her children are entitled to attend its schools tuition-free.

In an appeal brought under '310 of the Education Law, the Commissioner may substitute his judgment for that of those whose decision is under review (Board of Educ., Roslyn Union Free School Dist. v. Nyquist, 90 Misc. 2d 955 (1977)). Based on the record before me, I do not find sufficient evidence to conclude that petitioner has established a permanent residence outside of respondent's school district. Accordingly, respondent's determination will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondents allow Kristina DeVoe and Gina Somma to attend school in the Wallkill Central School District without the payment of tuition.

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