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Decision No. 16,190

Appeal of a STUDENT WITH A DISABILITY and his parent from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16,190

(January 10, 2011)

Dennis Marc Reisman, Esq., attorney for petitioners

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

STEINER, Commissioner.--Petitioners, a student with a disability (“student”)[1] and his mother (“mother”), appeal the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that the student is not a district resident entitled to attend its schools tuition-free.  The appeal must be dismissed.

In 2008, the student and his parents moved from Virginia to the student’s grandmother’s apartment in Great Neck, New York, within respondent’s district (“Great Neck apartment”).  On or about August 2008, the student was enrolled in respondent’s schools.  The record contains a copy of a two-year lease renewal agreement (March 1, 2009 through February 28, 2011) signed by the mother and grandmother as co-tenants on January 3, 2009.

In October 2009, the student’s parents purchased a home in Hempstead, New York, outside respondent’s district (“Hempstead residence”).  According to petitioners, the student’s father moved into the Hempstead residence later that month, while the student and his mother remained at the Great Neck apartment and the student continued to attend respondent’s schools.  Petitioners claim that the student has lived at the Great Neck apartment with his mother and grandmother since moving to New York in 2008 and intends to reside there “indefinitely.”  Petitioners explain that the student “does not get along with his father, and has no intention of moving to join him in Hempstead.”

In an affidavit, respondent’s Director for Special Education and Pupil Services (“director”) asserts that, in January 2010, the district’s Committee on Special Education (“CSE”) requested that the student undergo a psychiatric evaluation.  According to the director, the psychiatrist’s report (“report”) included statements made by the student that he moved into his grandmother’s Great Neck apartment in 2008 and that his mother “initially remained in Virginia, then eventually moved back to Hempstead with [his] father.”  The director also explains that, at a March 3, 2010 CSE meeting, the mother admitted that she had moved to Hempstead with her husband “about three months ago” and that the student remained in Great Neck with his grandmother.  The record also contains a sworn statement from the district’s registrar (“registrar”) that the director reported that after she informed the mother that her residency status would be referred to the registrar, the mother claimed that she stayed at the Great Neck residence with the student during the week.

By letter dated March 23, 2010, the registrar informed the student’s parents that the student was not a district resident and would be excluded from respondent’s schools effective April 9, 2010.  According to the registrar’s affidavit, during an April 13, 2010 meeting, the student’s mother stated that she and her husband purchased the Hempstead residence in October 2009 because “her employer had given her relocation funds to be spent by a certain deadline.”  According to the registrar, the mother also stated that “due to marital issues, only [her] husband currently resided at the Hempstead residence” and that the student could not live with his father because “they did not get along.”  The mother also explained that she had not “accurately explained her residency situation at the March 3, 2010 CSE meeting [because] she had not wanted to provide a full explanation of her marital issues in front of” the student.

By letter dated April 14, 2010, the registrar informed the mother that the student would “be allowed to continue attending district schools at this time.”  Thereafter, the district commenced an investigation into petitioners’ residency, which revealed that the cars owned by the student’s parents were registered to the Great Neck address.  Investigators conducted surveillance on approximately 15 occasions between April 13 and June 4, 2010.  According to the surveillance reports, the mother was observed exiting the Hempstead residence on seven weekday mornings.  The mother’s car was observed at the Hempstead residence on four weekday mornings and two weeknights, while her husband’s car was observed there on nine occasions (on five occasions, both cars were present).  However, on three weekday mornings and two weeknights, neither car was observed at the Hempstead residence.  The record also indicates that the Great Neck apartment was observed on only one occasion – the evening of Thursday, May 27, 2010 – and that neither car was present at that location.

In a June 4, 2010 letter, the registrar informed the student’s parents that the student was not a district resident and would be excluded from its schools as of June 25, 2010.  The mother attended a meeting with the registrar on June 16, 2010.  By letter dated that same day, the registrar affirmed her determination.  The letter included a tuition bill in the amount of $19,599.30 for the period from October 2009 through June 2010.

In a June 24, 2010 letter, the mother appealed the registrar’s determination to respondent.  She submitted several documents in support of her residency claim, including the lease, her driver’s license (issued on July 24, 2009), her 2009 tax return, a November 2009 letter from the Social Security Administration, telephone and credit card bills (from May and June 2010), an automobile insurance card (effective April 25, 2010 through October 25, 2010), and the student’s June 2010 pay stub from the Great Neck Park District.  The mother also produced notarized letters from the student and his grandmother stating that the student and his mother have lived at the Great Neck apartment since 2008 and that the student has been employed by the Great Neck Park District and the Great Neck library.  The mother also submitted sworn statements from two neighbors of the Great Neck apartment who state that they see petitioners there on a “regular basis” and that the mother “generally leaves for work early in the morning from the apartment and comes home to the apartment at night.”

By letter dated August 24, 2010, the district clerk informed the mother that respondent denied her appeal at its August 23, 2010 meeting.  The clerk requested payment of tuition and notified the mother of her right to appeal to the Commissioner.  This appeal ensued.

Petitioners assert that since leaving Virginia in 2008, the student has resided within the district with his mother and grandmother[2] and seek a determination that he is a district resident.  In the alternative, petitioners appear to argue that the student is no longer presumed to live with his parents because he is over the age of 18.  Petitioners also request a determination that they are not liable for the October 2009 through June 2010 tuition charges assessed by respondent and assert that, in light of the registrar’s April 2010 letter permitting the student to continue attending the district’s schools, respondent’s claim for tuition is “unjust.”

Respondent argues, interalia, that the appeal must be dismissed for failure to state a claim upon which relief may be granted.  Respondent asserts that the student and his parents have lived at the Hempstead residence since at least October 2009 and that its determination that he is not a district resident was not arbitrary and capricious.

Initially, I must address the record in this appeal.  First, respondent objects to petitioners’ reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In addition, by letter dated November 4, 2010, respondent requested permission to file a sur-reply affirmation in response to petitioners’ reply.  Petitioners oppose this request, and urge that, should I consider the sur-reply, I also consider petitioners’ responsive affirmation.  In a November 19, 2010 letter to my Office of Counsel, respondent requested that I consider a “letter affirmation” from its attorney.  The Commissioner, in his discretion, may permit the service and filing of additional affidavits, exhibits and other supporting papers (see 8 NYCRR §276.5).  Accordingly, I have accepted the parties’ additional submissions.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773) or that the student is emancipated from his or her parents (Appeal of Humphrey, 43 Ed Dept Rep 117, Decision No. 14,940; Appeal of Swezey, 39 id. 81, Decision No. 14,180; Appeal of Diaz, 33 id. 38, Decision No. 12,967).  For purposes of establishing residency under Education Law §3202, a student is considered emancipated if he or she is beyond the compulsory school age, is living separate and apart from his or her parents in manner inconsistent with parental custody and control, is not receiving financial support from his or her parents, and has no intent to return home (Appeal of Humphrey, 43 Ed Dept Rep 117, Decision No. 14,940; Appeal of Swezey, 39 id. 81, Decision No. 14,180; Appeal of Diaz, 33 id. 38, Decision No. 12,967).

Although petitioners contend that the burden of proof in a residency appeal is on the party alleging a change in residence, respondent correctly notes that a residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  This standard has been applied by the Commissioner in residency appeals for more than 10 years.  To the extent that any previous decisions by the Commissioner in appeals filed pursuant to Education Law §310 may be interpreted to the contrary, those decisions are expressly overruled.

In this case, petitioners have failed to establish that they are residents of respondent’s district or to rebut the presumption that the student’s legal residence is with his parents outside the district.  Preliminarily, I note that surveillance was conducted on the Great Neck apartment on only one occasion and that the student was never observed at the Hempstead residence.  However, the mother was observed exiting the Hempstead residence on seven weekday mornings, which belies her April 2010 statement that she stayed at the Great Neck apartment with the student during the week.  Further, the mother’s car was observed at the Hempstead residence on six occasions – both weekday mornings and evenings – and her husband’s car was observed there on nine occasions.  While petitioners have submitted a reply in which they generally object to the “alleged” surveillance, petitioners neither deny nor provide an explanation for the mother’s presence at the Hempstead residence.

To support their residency claim, petitioners have produced sworn statements from the student, his grandmother and two neighbors of the Great Neck apartment stating that petitioners have lived there since 2008.  However, such statements must be weighed against the affidavits submitted by respondent indicating that the mother has provided conflicting accounts of her residency.  For example, the director’s sworn statement indicates that the mother admitted at the March 2010 CSE meeting that she resides in Hempstead with her husband.  However, according to the registrar’s affidavit, while the mother explained at the April 2010 residency meeting that she does not live with her husband due to “marital issues,” she also claimed that she stayed at the Great Neck residence with the student during the week.  Petitioners have failed to provide any explanation for these conflicting statements.

As noted above, petitioners have also submitted several documents listing the Great Neck apartment as their address.  While these documents do indicate that petitioners use the grandmother’s in-district address as their mailing address, they are not dispositive of petitioners’ residency.  Moreover, although petitioners have produced a copy of a two-year lease for the Great Neck apartment, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).  Based on the totality of the record before me, therefore, I find that petitioners have failed to establish that they are district residents.

Nor have petitioners rebutted the presumption that the student resides with his parents outside respondent’s district.  I find no merit to petitioners’ contention that such presumption does not apply in this case because the student is over the age of 18.  As noted above, Education Law §3202(1) specifically provides that students over five and under twenty-one years of age who have not received a high school diploma are entitled to attend school without the payment of tuition in their district of residence.  Accordingly, previous Commissioner’s decisions have applied the traditional tests for residency, including the presumption that a child’s residence is that of his or her parents, to students who have reached the age of 18 (seeAppeal of Taylor, 43 Ed Dept Rep 430, Decision No. 15,042; Appeal of Kehoe, 37 id. 14, Decision No. 13,792).[3]

In the instant appeal, petitioners admit that the student “continues to be dependent on the financial assistance of” his parents and grandmother for “room, board and other needs.”  Petitioners further explain that the student’s parents have “chosen to assist him to complete his high school education, by paying for the cost of his enrollment in a G.E.D. program” at a community college.  The record also reflects that the student’s mother is actively involved in making educational decisions regarding the student.  For example, she was present at the student’s March 2010 CSE meeting as well as both the April and June 2010 meetings with the registrar.  The mother also appealed the registrar’s determination to the board and, together with the student, has commenced the instant appeal.  Under these circumstances, I conclude that petitioners have not demonstrated that the student is emancipated and have not rebutted the legal presumption that he lives with his parents (seeAppeal of Kehoe, 37 Ed Dept Rep 14, Decision No. 13,792; Appeal of Diaz, 33 id. 38, Decision No. 12,967).

Based on the totality of the record before me, I find that respondent’s residency determination is neither arbitrary nor capricious and will not be set aside.

Finally, petitioners’ request for a determination that they are not liable for past tuition must be denied.  The Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  I similarly decline to address petitioners’ liability for tuition, which should be left to the court in which an award of tuition is sought (seeAppeal of Yuen, 49 Ed Dept Rep 175, Decision No. 15,989).

THE APPEAL IS DISMISSED.

END OF FILE.

[1] The student was 18 years old at the time this appeal was commenced.

[2]Petitioners also note that, while the mother “intended to continue to reside” at the Great Neck apartment “until [the student] completed his high school education,” she is now “spending more time” at the Hempstead residence due to respondent’s residency determination.

[3] I also note that parental responsibility for a child does not automatically terminate at the child’s 18th birthday.  Pursuant to §413 of the Family Court Act, “the parents of a child under the age of twenty-one years are chargeable with the support of such child....”  Thus, the presumption of parental residence is not automatically rebutted by mere virtue of the fact that a student turns 18.