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Decision No. 15,632

Appeal of NORA DADD-RAMOS, on behalf of her daughter CHRISTINA DADD, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 15,632

(August 15, 2007)

Tassan Pugatch & Nikolis, attorneys for petitioner, Louis S. Tassan, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter, Christina, is not a district resident.  The appeal must be dismissed.

On or about July 15, 2004, petitioner was permitted to enroll Christina in respondent’s district based upon her representation that she and Christina resided on Clyde Road within the district.  At that time, she also indicated that the Clyde Road residence was owned by S.P. and that Christina’s father resided on Jean Avenue in Hempstead, New York.

On or about May 22, 2006, S.P.’s daughter, L.H., who resides at the Clyde Road address, advised her guidance counselor that Christina only uses the Clyde Road address so that she can attend the district’s schools.  She further advised her guidance counselor that Christina resides with her mother and father on Jean Avenue and that she has visited Christina at this residence.  The guidance counselor immediately reported L.H.’s comments to the district’s registrar and residency investigator.

Subsequently, the district initiated a residency investigation.  Through its review of New York State Department of Motor Vehicles records, the district discovered that petitioner’s driver’s license lists the Jean Avenue address as her residence.  The motor vehicle registration for petitioner’s blue Chevrolet also lists the Jean Avenue address as her residence and the last time petitioner renewed this registration was February 17, 2006.  In addition, the registrations for Christina’s father’s vehicles list the Jean Avenue address as his residence.

On 20 separate dates, from May 26 to October 13, 2006, the district conducted surveillance of the Jean Avenue residence.  On 13 days, petitioner’s vehicle was observed parked outside the Jean Avenue address, and 12 of those 13 surveillances were conducted in the early morning hours.  On 7 mornings, Christina was seen exiting the Jean Avenue residence and being driven away. 

On the mornings of September 8, and October 4 and 13, 2006, the district conducted surveillance of the Clyde Road residence.  Christina was not seen leaving the Clyde Road residence on any of those mornings.  However, she was present at school on each of those dates.  Petitioner was only observed at the Clyde Road residence on one occasion and on that occasion, she and Christina were seen parking in front of the residence in the morning and then entering it.  Shortly thereafter, Christina and a young female were observed exiting the residence and driving away in a white Jeep.

The district also obtained a Comprehensive Report Address Summary (“report”) regarding petitioner.  The report lists three address entries for petitioner.  One of the entries lists the Jean Avenue residence as petitioner’s address and this entry is the most current.  The other two entries list two different addresses in Brooklyn.

By letter dated September 20, 2006, the director of pupil services (“director”) advised petitioner that she had determined that Christina was not a district resident and that she would be excluded from respondent’s schools after October 6, 2006.  The letter further advised petitioner that she could appeal this decision by requesting a conference.

Petitioner requested a conference which was held on September 27, 2006.  Petitioner claimed that she and Christina have lived at the Clyde Road address with S.P. and her daughter, L.H., for more than two years.  However, according to respondent, she admitted that Christina lived at the Jean Avenue residence at the end of the 2005-2006 school year and during the summer of 2006.

Petitioner also stated that she has been separated from Christina’s father for approximately four years and that he lives at the Jean Avenue address with their other daughter, Jennifer.  Petitioner admitted that she occasionally stays at the Jean Avenue residence due to family medical issues.  Petitioner claimed that due to Jennifer’s high risk pregnancy, she cannot be left alone and that Christina stays with her when their father has to work at night.  Petitioner asserted that other than these occasions and Christina’s regular weekend visits with her father, Christina lives with her at the Clyde Road residence.  Petitioner admitted that she filed a joint tax return with her husband for 2005.

During the conference, petitioner submitted a copy of a Cingular Wireless bill, an MCI bill, two letters from the Nassau County District Attorney’s Office and an order of protection, all reflecting the Clyde Road address.  Petitioner also submitted an automobile insurance bill that listed the Jean Avenue address.  Subsequent to the conference, petitioner submitted to the district a copy of her 2005 tax return which lists the Jean Avenue residence as her address.

By decision dated October 5, 2006, the director determined that petitioner and Christina were not district residents and that Christina would be excluded from respondent’s schools after October 13, 2006.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 19, 2006.

Petitioner contends that both she and Christina are district residents because they reside at the Clyde Road address.  To substantiate this contention, she submits all the documents she submitted at the September 27, 2006 conference.  Petitioner also submits bank deposit and withdrawal slips.  The deposit slip, dated August 13, 2006, has the Clyde Road address handwritten on it but the withdrawal slip contains no address.  In addition, petitioner submits letters from colleges and a postcard about financial aid that are addressed to Christina at the Clyde Road residence.

Additionally, petitioner submits affidavits from Christina’s father, Christina, Jennifer, S.P., E.N., T.N., Christina’s friend, and T.N.’s mother.  All the affidavits support petitioner’s claims that she and Christina have resided at the Clyde Road residence for approximately two years and that Christina only occasionally stays at her father’s residence due to her sister’s high risk pregnancy.

Respondent contends that petitioner has failed to establish that she and Christina are district residents.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  In an appeal to the Commissioner, the 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; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Based on the record before me, I find respondent’s determination that petitioner and Christina are not district residents to be reasonable.  Between May 26 and October 13, 2006, surveillance was conducted on the Jean Avenue residence on 20 occasions and on 12 of those occasions, petitioner’s vehicle was observed there in the early morning hours.  On seven occasions, Christina was observed leaving the Jean Avenue residence in the morning and being driven away.

On the mornings of September 8, October 4 and 13, 2006, the district conducted surveillance of the Clyde Road residence.  Christina was not seen leaving the Clyde Road residence on any of these mornings.  However, she was present at school on each of those days.  Petitioner was also only observed at the Clyde Road residence on one occasion and on that occasion, she and Christina were seen parking in front of the residence in the morning and then entering it.

In addition, petitioner has failed to provide any explanation as to why her vehicle was observed at the Jean Avenue residence on 12 separate mornings from May 26 to October 13, 2006.  Nor has petitioner provided an explanation for why the only time she was observed at the Clyde Road residence was when she was dropping Christina off one morning.  Petitioner has further failed to provide an explanation for why Christina was only observed once leaving the Clyde Road residence in the morning and on that occasion, Christina had been dropped off at the residence by petitioner earlier that morning.  The surveillance also undermines petitioner’s claim that Christina only stayed at her father’s residence occasionally.

Furthermore, S.P.’s claims that petitioner and Christina have been residing with her for over two years are undermined by her daughter’s statements to her guidance counselor that Christina was only using the Clyde Road address so that she could attend the district’s schools.  Additionally, during the conference, petitioner admitted that Christina lived at the Jean Avenue address at the end of the 2005-2006 school year and during the summer of 2006.

In this appeal, petitioner produced several documents listing the Clyde Road address.  However, these documents are not dispositive of petitioner’s residency, particularly in light of the district’s investigation, which included approximately 20 surveillances during a four and a half month period (seeAppeal of Peacock, 46 Ed Dept Rep 120, Decision No. 15,460; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

Based on the record before me, I find that petitioner has failed to establish actual physical presence in the district.  Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

THE APPEAL IS DISMISSED.

END OF FILE