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Decision No. 16,497

 

 Appeals of DANIELLE BETHEA, on behalf of her children PAIGE and JORDAN ADAMS, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,497

(July 8, 2013)

Kehl, Katzive & Simon, L.L.P., attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determinations of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her children, Page and Jordan Adams, are not district residents. The appeals must be dismissed.

Petitioner’s children attended respondent’s elementary school during the 2011 – 2012 school year. During that year, respondent received information that petitioner and her husband lived in Yonkers, outside the district. As a result, petitioner was notified that her children would be excluded from the district’s schools for the 2012 – 2013 school year. On August 30, 2012, petitioner submitted incomplete “host family” forms to respondent claiming to have moved in with her son (“Mr. Bouche”) in New Rochelle, within the district (“New Rochelle address”).

On September 11, 2012, respondent’s elementary school attendance teacher (“attendance teacher”) visited the New Rochelle address and found both children present in their pajamas. The only adult present, Mr. Bouche, stated that petitioner resided in the apartment but that her husband did not.

On September 12, 2012, petitioner submitted elementary school registration forms for Paige and Jordan representing that she and her husband lived at the New Rochelle address.

On the morning of September 14, 2012, respondent’s attendance teacher again visited the New Rochelle address. Mr. Bouche was present but the children were not.

On December 20, 2012, respondent’s attendance teacher interviewed the owner of a building located in Yonkers, New York. The owner confirmed that petitioner and her husband resided there full time.

By certified letter dated January 2, 2013, mailed to the Yonkers address, respondent’s director of pupil services (“director”) informed petitioner and her husband that their residency was in question and invited them to submit information to support their claim of residency within the district. The return receipt was signed by petitioner’s husband.

By letter dated January 30, 2013, the director notified petitioner of her determination that petitioner and her children were not district residents. This appeal ensued. Petitioner’s request for interim relief was granted on March 13, 2013.

Petitioner maintains that her family resides with her son within the district at the New Rochelle address. Respondent maintains that petitioner’s family resides outside of the district in Yonkers.

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). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773).

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 Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner has not carried her burden of proof. She submits nothing but unsubstantiated allegations that her family resides within the district. Respondent, on the other hand, submits substantial proof that petitioner and her children reside outside the district. For example, respondent submits various bills and letters addressed to petitioner’s husband or his business at the Yonkers address. Respondent also submits housing records which show that petitioner is not one of the three documented residents of the New Rochelle address. Moreover, respondent’s director avers that, on December 12, 2012, an attendance teacher interviewed the owner of the Yonkers residence, who stated that petitioner and her husband reside there full time. Finally, respondent has submitted evidence relating to the attendance teacher’s visits to the in-district address, which indicate that, while petitioner’s children may from time to time stay with a relative in New Rochelle, their residence is with their parents in Yonkers.

Based on the record before me, petitioner has failed to establish that she and her children are district residents. Accordingly, I cannot find respondent’s determinations to be arbitrary or capricious.

Although the appeals must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on her children’s behalf at any time should their circumstances change and submit any documentary evidence for respondent’s consideration.

THE APPEALS ARE DISMISSED.

 END OF FILE