Decision No. 13,998

(August 21, 1998)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that her daughter, Christine Bacchus, is not entitled to attend the district’s school tuition-free. The appeal must be dismissed.

Petitioner and her daughter are legal resident aliens who arrived in this country on September 6, 1997. Upon their arrival, petitioner and her daughter stayed with petitioner's parents, who are United States citizens residing in Hempstead. On September 15, 1997 they allegedly moved in with petitioner’s sister in Uniondale. Christine began attending Uniondale High School in October 1997.

Petitioner registered her daughter at respondent’s high school using her sister's Uniondale address. During the first month of school, Christine was asked to come to the office to verify her residency information. She did not recognize the telephone number on file for her, which was her aunt’s number. Instead, she gave her grandmother’s number as the number where she and her mother could be reached. When the school called this number the grandmother answered the phone and said her daughter, petitioner, lived there.

Based on the above-described incident respondent began a surveillance of petitioner and her daughter. Between November 17, 1997 and December 1, 1997, surveillance was done on five separate occasions. On each occasion investigators observed Christine being driven to Uniondale High School from her grandparent's Hempstead home.

On December 4, 1997 respondent's superintendent and high school principal advised petitioner that her daughter would be excluded from respondent's schools as of December 19, 1997. On December 8, petitioner met with Gloria Lebby, respondent's attendance officer, to discuss this determination. She told Ms. Lebby that she and Christine spent four to five nights per week in Hempstead, with her parents, but also spent some time in Uniondale. In addition, petitioner stated that her green card was issued with the Hempstead address. On December 18, 1997, petitioner commenced this appeal and requested interim relief. Petitioner's request for interim relief was denied on January 13, 1998.

Petitioner contends that she spends some time at her parent’s home in Hempstead, but her legal residence is with her sister in Uniondale. Petitioner admits that she and Christine lived with her parents when they first came to this country, but contend she moved in with her sister in Uniondale on September 15, 1997. She also admits that she and her daughter occasionally stay with her parents in Hempstead, though primarily on the weekends.

Respondent contends that Christine was unable to recognize her aunt’s phone number when asked to do so. Instead, she gave her grandparent’s number as her home phone number, and when that number was called, the person answering the phone admitted that petitioner lived there. Based on this incident respondent began an investigation, which revealed Christine being driven to Uniondale High School from her grandparent’s home on five different school days.

Additionally, respondent had in its possession an outpatient appointment slip for Christine dated September 24, 1997, from Nassau County Medical Center, which listed 114 Marvin Avenue, the grandparent’s Hempstead address. Based on all of the above, respondent contends that petitioner and her daughter do not live in the district.

Initially, I must address a procedural matter. Respondent submitted a late answer to the petition. Respondent served its answer on January 26, 1998, 19 days late (8 NYCRR "275.13). I note, however, that respondent's answer is virtually identical to respondent's affidavit in opposition to petitioner's request for interim relief, which was submitted in a timely manner. Accordingly, in the absence of any prejudice to petitioner, I have considered respondent's answer.

Turning to the merits, Education Law "3202(1) provides, in pertinent part:

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 Allen, 35 Ed Dept Rep 112; Appeal of Brutcher, 33 id. 56).

A child’s residence is presumed to be that of her parent or legal guardian (Appeal of Daniels, 37 Ed Dept Rep 557; Appeal of Keenan, 36 id. 6). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Educ., 64 Misc 2d 60; Appeal of Daniels, supra; Appeal of Varghese, 34 Ed Dept Rep 455) and an intent to reside in the district (Appeal of Daniels, supra; Appeal of Varghese, supra). Moreover, for purposes of Education Law "3202 a person can have only one legal residence (Appeal of Daniels, supra; Appeal of Britton, 33 Ed Dept Rep 198).

Petitioner does not dispute that her child resides with her. Other than her statement of residency, petitioner has presented no documentary or testimonial evidence that she resides with her sister in Uniondale. To the contrary, respondent presented evidence of petitioner's physical presence in Hempstead. Specifically, Christine was unable to remember her aunt’s phone number, but knew her grandparent’s number. A five-day surveillance revealed that Christine left her grandparent’s home in Hempstead on each occasion and was driven to Uniondale High School. Respondent also produced a hospital outpatient appointment slip, which had the grandparent’s address on it as Christine’s home address. Furthermore, petitioner admitted to respondent that she spent four or five nights per week with her parents, not with her sister. Accordingly, I find the totality of respondent's evidence, in conjunction with the lack of any substantial evidence from petitioner, to be sufficient to support respondent’s determination. Thus, based on this record I cannot find respondent's determination to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

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