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Decision No. 14,440

Appeal of WILBUR STATON, on behalf of his daughter, CHARRELLE STATON, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 14,440

(August 18, 2000)

Martin & Molinari, LLP, attorneys for petitioner, John E. Molinari, Esq., of counsel

Ingerman, Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District ("respondent") that his daughter, Charrelle, is not a resident of the district. The appeal must be sustained.

Petitioner resides at 207 Liberty Park Drive, Freeport, within respondent's district. Charrelle's mother, Cassandra Moseley, lives at 14 Hotchkiss Place, in Freeport, but outside the district, with her mother, Viola Pannell.

During the 1999-2000 school year, Charrelle was a seventh grade student at respondent's Dodd Junior High School, although she previously attended school in the Roosevelt Union Free School District. Respondent states that it became suspicious of Charrelle's residency in October 1999, and began conducting surveillance in March 2000. Thereafter, petitioner received a letter stating that a residency hearing would be conducted with respect to Charrelle. The hearing was conducted on April 14, 2000, and resulted in a determination letter dated April 18, 2000, finding that Charrelle was not a district resident and stating that her last day of attendance would be May 3, 2000.

This appeal was commenced on May 10, 2000, and on May 18, the Commissioner granted interim relief directing that Charrelle be re-admitted to respondent's schools pending the determination of this appeal.

Petitioner contends that respondent's determination was against the weight of the evidence produced at the hearing, and that his daughter is a resident of the district. Respondent claims that Charrelle, in fact, lives with her mother at 14 Hotchkiss Place, Freeport, in the Roosevelt Union Free School District. Respondent further claims that petitioner alleges that his daughter resides in the district only for the purpose of gaining access to the district's schools.

I find that the appeal must be sustained. I have carefully reviewed the evidence presented at the hearing conducted on April 14, 2000 and I conclude that it does not support the determination made by respondent's superintendent that Charrelle is not a district resident.

At the hearing, a district employee stated that an emergency notification card for Charrelle was filed with respondent in October 1999, but was signed by her mother, although the card indicated that Charrelle lived at her father's address. Based on that signature, respondent became suspicious and decided to investigate. The district then presented the testimony of Julius Pearse, who conducted surveillance at the 14 Hotchkiss Place address during March and April 2000. With the exception of March 1, when he arrived at the Hotchkiss Place address at 6:30 a.m., all surveillances began at 7:00 a.m. or later. Mr. Pearse testified as to five dates in March when he conducted surveillance at Hotchkiss Place, largely by reading from his reports which are part of the record. He also stated that he conducted surveillances at both Liberty Park Drive and Hotchkiss Place on five dates in April.

During the March surveillances, Charrelle was seen by Mr. Pearse leaving the Hotchkiss Place residence on four occasions. During April, although Mr. Pearse's report indicates that he and an assistant conducted surveillance on April 10, 11, 12, 13, and 14, at both addresses, there are no reports at all as to Liberty Park Drive, and only one report (April 12) when Charrelle was seen leaving the Hotchkiss Place address.

Petitioner's claim that his daughter resides with him in the district was supported by his own testimony as well as the testimony of Cassandra Moseley, Viola Pannell, and Tony Moseley.

Petitioner testified that Charrelle lives with him, his wife, his son, Travis Eason, and his stepson, Derrick Drye. He provides health insurance for his daughter. He testified that he is required to be at work by 7:00 a.m. and usually drives his daughter to her grandmother's house, at 14 Hotchkiss Place, because he does not want Charrelle to go to school alone or in the company of the two boys and their male friends. He also testified that because of recent surgery, he has not been able to drive his daughter, so she has stayed with her mother and grandmother.

Cassandra Moseley testified that when Charrelle finished the sixth grade, she and her husband discussed having Charrelle live with her father, and that Charrelle has done so since August 1999. She explained that she claimed Charrelle as an income tax exemption on her 1999 tax return, because her daughter had spent more than half of the year with her.

Viola Pannell testified that Charrelle stayed with her during a recent illness and has taken care of some of the household chores. Mrs. Pannell also testified that she is a crossing guard in respondent's district, and it is clear that she drives to work on school days because of her employment.

Respondent's determination is based largely upon the testimony regarding the district's surveillance. That testimony indicated that the observer saw Charrelle leave her grandmother's home on five occasions out of ten observations over a period of one and one-half months, and is hardly conclusive (cf., Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142, where surveillance was conducted on approximately 35 occasions over a four-month period). There are no reports at all with respect to 207 Liberty Park Drive. Respondent's superintendent questioned the explanation that Charrelle's overnight stays at the home of her mother and grandmother were precipitated by recent illnesses on the part of both her father and grandmother. The superintendent found these explanations "conflicting." Although they are different, I do not find them in conflict.

Respondent's superintendent also focused on the fact that Charrelle's father provided her health insurance, but her mother claimed her as an exemption for income tax purposes in 1999, when she lived with her mother for approximately eight months. I do not find these matters to be significant. The registration card submitted by respondent indicates that Charrelle's father and mother have joint custody. While this was not proven, neither was it contested. As a result, the elements of support mentioned are not determinative, since both parents would be obligated to provide support, and would be expected to do so.

On the record before me, I do not find that respondent had a sufficient factual basis to determine that Charrelle Staton resides outside the district (Appeal of Chan, 39 Ed Dept Rep 200, Decision 14,214, judgment granted dismissing petition to review, Supreme Court, Albany County, Connor J., June 7, 2000, n. o. r.).

I have not considered those exhibits presented by the parties, which were not presented to the hearing officer, and, in any event, I do not find them persuasive.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Charrelle Staton to attend school in the Freeport Union Free School District without the payment of tuition.

END OF FILE