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Decision No. 16,451

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the New York City Department of Education regarding residency.

Decision No. 16,451

(January 25, 2013)

The Dweck Law Firm, LLP, attorneys for petitioner, H.P. Sean Dweck, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Gloria M. Yi, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her son (the “student”), does not reside in the attendance zone for Public School (“P.S.”) 234.  The appeal must be dismissed.

Petitioner alleges that she resides with her son in Manhattan (the “Manhattan address”).  In January 2011, petitioner submitted the required paperwork to enroll her son for kindergarten at P.S. 234, the zoned elementary school for that address.  After receiving this information, respondent conducted an “address verification investigation” due to its concerns that petitioner operates a business at the Manhattan address and was unable to submit a rent check from a personal account.  On or about March 7, 2011,[1] a home visit was conducted at the Manhattan address during regular business hours.  Although the student was not present during the home visit, based on the findings of the visit, respondent determined that petitioner and her son were residents of P.S. 234’s attendance zone and that her son was therefore permitted to be considered for enrollment at P.S. 234 through its lottery system.  On March 8, 2011, the student’s name was drawn at the lottery for a kindergarten seat at P.S. 234.

On April 4, 2011, petitioner submitted a pre-registration packet which stated that the student’s father lives in Brooklyn with his two younger siblings.  The student’s parents are not married, but petitioner admits they “co-own” the Brooklyn residence.  In light of this information, which was not previously known to respondent, it decided to further investigate the student’s residency.  On the morning of May 25, 2011, the principal of P.S. 234 and her secretary visited the Brooklyn address where they found petitioner, her son, his father and two younger siblings at home.  During the visit, the student and his father left to go to school in Manhattan, which his father admitted he did “all the time.”  Based on this visit, by letter dated May 25, 2011, the principal of P.S. 234 informed petitioner and the student’s father that their son was not eligible to attend P.S. 234.

On June 10, 2011, petitioner appealed this decision to respondent’s Child First Network 203 (“CFN 203”) which supports P.S. 234.  At the hearing, it was determined that further investigation was necessary.  Thereafter, an attendance teacher conducted surveillance at the Manhattan address on June 14, 15 and 16, 2011 between 7:30 and 8:30 a.m. each day.  Although the doorbell was rung for the unit petitioner had indicated to be her residence in the pre-registration packet, no one was observed at the address on those days.  Another attendance teacher attempted to conduct a home visit at 8:00 p.m. on June 22, 2011 at the Manhattan address but also observed no one.  Additionally, the second attendance teacher conducted surveillance on June 20 and 24, 2011 at the Brooklyn address and observed a female and child; fitting the description of petitioner and the student, leave that address on both mornings.

By letter dated June 24, 2011, CFN 203 notified petitioner that, based on the results of its address verification investigation, it verified that petitioner resides with the student at the Brooklyn address and therefore, the student was unable to attend P.S. 234.  This appeal ensued.  Petitioner’s requests for interim relief were denied by letters dated July 20, 2011 and September 1, 2011.

Petitioner argues that respondent’s determination was arbitrary and capricious because it disregarded established facts.  Petitioner also argues that she met all of the requirements of Chancellor’s regulation A-101 which lists the criteria to establish residency for purposes of attending respondent’s schools.  Finally, petitioner argues that previous Commissioner’s decisions have held that a child may have a relationship with the noncustodial parent while maintaining his residence with the custodial parent, as is the case in this situation.

Respondent states that it did not act in an arbitrary or capricious manner when it determined that the student is not a resident of P.S. 234’s attendance zone and that petitioner has failed to meet her burden of proof.

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).

For purposes of Education Law §3202(1), a person can only have one legal residence (Appeal of Moore, 49 Ed Dept Rep 158, Decision No. 15,985, Appeal of Reynolds, 41 id. 32, Decision No. 14,604).  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).

Although petitioner asserts that the student maintains a relationship with his father, I note that where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

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).

Petitioner argues that she has submitted all of the documentation required to establish residency in accordance with the requirements of Chancellor’s regulation A-101.  Indeed, petitioner attached 17 exhibits to her petition as evidence that she and the student reside at the Manhattan address.  These documents include the student’s birth certificate, a Verizon wireless bill, the student’s health examination form, a bank statement, an electric bill, a proposed Individualized Education Program (”IEP”) for the student from respondent, a notarized statement from the managing agent of the Manhattan address stating that petitioner and the student reside there, and several letters and statements documenting that the student has received services at that address and taken classes at facilities located nearby.  Petitioner also operates a business out of the Manhattan address and the documentation submitted by petitioner evidences that her business pays the rent for this address.

Although Chancellor’s regulation A-101 requires the submission of certain documentation to establish residency, it also states:

Residence is determined by a person’s physical presence as an inhabitant within the designated geographic boundaries of a school district with the intent to remain.

Petitioner submits multiple documents as proof of her residency at the Manhattan address, which is also her business address; however, in light of respondent’s surveillance, I cannot find that petitioner’s use of this address on documents, by itself, is dispositive of her residency.  Respondent has submitted evidence that out of eight days of surveillance and/or home visits, petitioner was only found to be at the Manhattan address on one occasion, during business hours.  Additionally, the student was never observed at the Manhattan address and was only observed at the Brooklyn address.  Petitioner, who admits that she co-owns the Brooklyn residence with the student’s father, states that she and the student were observed at the Brooklyn residence on the May 25, 2011 home visit because she returned late from a business trip the previous evening and decided to stay the night in Brooklyn with the student.  Regarding the June 20 and 24, 2011 surveillance, petitioner states that the student stayed with his father in Brooklyn that week because the father’s relatives were visiting to partake in the student’s preschool graduation activities.  However, petitioner does not explain why she was also seen leaving the Brooklyn address with the student on June 20 and 24, 2011.  Nor does petitioner adequately explain the admission by the student’s father, attested to in the affidavit of the principal of P.S. 234 that he transports the student to school in Tribeca, Manhattan “all the time.”  On this record, petitioner has failed to establish the student’s physical presence at the Manhattan address.

 Accordingly, I am unable to determine on this record petitioner’s actual physical presence and intention to reside at the Manhattan address and, therefore, I cannot conclude that respondent’s determination in this matter was arbitrary or capricious.  Thus, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] The petition states that this visit occurred on March 7, 2011, but the answer and affidavit from principal Lisa Ripperger state that this visit occurred “on or around March 1, 2011.”