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Decision No. 16,630

Appeal of CHRISTINE VINCENT, on behalf
of her daughter TAHJEE NORMAN, from
action of the Board of Education of the City School District of the City of New
Rochelle regarding residency.

Decision No. 16,630

(July 8, 2014)

Bond, Schoeneck & King, PLLC, attorneys for respondent, E. Katherine Hajjar, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent” or “district”) that her daughter, Tahjee, is not a district resident.  The appeal must be dismissed.

The record indicates that petitioner presented her daughter for enrollment in its schools in or about July 2012.  According to respondent, petitioner stated that she, Tahjee, and petitioner’s son had moved into the district at that time and were living with petitioner’s mother. 

Because petitioner’s living arrangement presented what respondent calls a “host family” circumstance,[1] respondent asked petitioner to submit a “Statement of Visiting Family to Establish Residence of Students” form for the 2013-2014 school year.  On the form, petitioner listed her “prior” address as one outside the district (the “Bronx address”) and her mother’s in-district address as the home where she and her children moved on a permanent basis as of July 2012.  Respondent states that because “host family” arrangements are meant to be temporary, students that are known to live with a “host family” must go through the process of residency re-verification at the start of each school year. 

Respondent contends that, accordingly, it conducted a home visit to petitioner’s mother’s address on August 29, 2013, however, the Attendance Teacher (“teacher”) conducting the visit was told that petitioner and her daughter were not home.  Respondent supplies an affidavit from the teacher stating that, on that same day, he conducted an internet search for information about petitioner’s last known residence and upon visiting that address noticed that petitioner’s name was on the mailbox.  The record also indicates that a second Attendance Teacher (“second teacher”) for the district conducted a home visit on August 30, 2013 to verify the residency of another child claiming to reside at petitioner’s mother’s in-district address,2 and stated that she saw no evidence that any children lived in the home.

Respondent states that by letter dated November 19, 2013, the Director of Pupil Services (“director”) informed petitioner that the district had received information that she and her daughter do not reside within the district and that petitioner had until December 3, 2013 to submit proof that she and Tahjee live in the district.3  According to respondent, petitioner did not provide the necessary documentation.  By letter dated December 4, 2013, the director notified petitioner of the determination that, based on her residence in the Bronx, she was not a district resident and, therefore, that Tahjee was not eligible to attend respondent’s schools.  The letter indicated that Tahjee would be excluded after December 20, 2013.  This appeal ensued.  By letter dated January 6, 2014, respondent indicated that it did not oppose petitioner’s request for interim relief, which was granted on January 7, 2014.

Petitioner requests a determination that Tahjee is a resident of the district and is entitled to attend school in the district without the payment of tuition, as well as such other relief as the Commissioner deems just and proper.  Respondent contends that petitioner and her daughter are not district residents and that Tahjee is not eligible to attend public school in the district. Respondent further contends that the petition must be dismissed as petitioner has not met her burden of proof and respondent’s determination of non-residency was not arbitrary, capricious, or unreasonable.

Preliminarily, I note that respondent’s attorney submitted an affirmation in which she stated that “it is appropriate that I alert the Commissioner” to another pending appeal (Appeal of Norman, Appeal No. 19,857, as noted above) in which the petitioner also claimed “visiting family” residence with the mother of petitioner in the instant case, “who, to the best of the [s]chool [d]istrict’s knowledge, is both the mother of [p]etitioner Christine Vincent and Sineatca Norman [the petitioner in Appeal No. 19,857].”  The affirmation goes on to state that respondent determined that neither petitioner (nor their respective daughters) resides at their mother’s in-district address but that both petitioners created a fictitious residence, for school district residency purposes, when it appears that each petitioner (and their respective daughters) actually resides at her respective prior address.  I hereby take administrative notice of the record in Appeal of Norman.

Turning to the merits, 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).

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).

Here, petitioner has not met her burden of proof.  In support of her appeal, petitioner submits a television bill in her mother’s name at the in-district address, five handwritten receipts indicating that petitioner’s mother paid someone in cash for rent (for months including September through December 2013), and two credit union statements in petitioner’s name at her mother’s in-district address (for the months of September and November 2013).  The documentation is insufficient to establish petitioner’s and her daughter’s residency in the district.  Only the two credit union statements even contain petitioner’s name at the in-district address and appear to be for a dormant account which reflects no activity and a negative balance.  The rent receipts and television bill indicate, at most, that petitioner’s mother lives at the in-district address.  Petitioner’s evidence does not establish physical presence or intent to reside in the district.

In addition to respondent’s evidence noted above, respondent submitted affidavits from a Residency Desk Senior Typist in the district stating that petitioner told her that petitioner does not receive her mail at her mother’s in-district address; from Tahjee’s Home and Careers teacher during the 2013-2014 school year who stated that, upon calling petitioner at the phone number listed in Tahjee’s school records, she was told by petitioner’s mother that petitioner does not live with her and that she has “a lot of kids that use this number;” and from a School Aide who monitors the bus route that serves petitioner’s mother’s address and attested that she has only seen Tahjee ride the bus once since she began attending school in the district nearly a year and a half ago.  Respondent also submits a sworn statement from the second teacher that Tahjee’s brother attends school in the Bronx, where petitioner indicated her prior address was located.  While respondent’s evidence is not overwhelming, petitioner submits no reply to refute or explain respondent’s evidence.  On this record, I find that respondent’s non-residency determination was not arbitrary, capricious or unreasonable. 

 However, I note that the affidavit of the attendance teacher,4 which respondent submitted in Appeal of Norman, 54 Ed Dept Rep, Decision No. 16,629, states:

On August 30, 2013, I interviewed the owner of [petitioner Norman’s mother’s address].  He told me that he had no knowledge of [p]etitioner [Norman] or [her daughter] Danae living at that address.  He stated that he rents the first floor of the building to [petitioner Norman’s mother], and that [petitioner Norman’s mother’s] son, her daughter Christine [petitioner in this appeal], and Christine’s child were the only other people living on the first floor of [petitioner Norman’s mother’s address].   

This statement in Appeal of Norman, 54 Ed Dept Rep, Decision No. 16,629, appears to be inconsistent with respondent’s claims in the instant appeal.  Furthermore, this inconsistency is not explained by respondent, despite respondent’s attorneys having directed my attention to the record in the Norman appeal.  Nevertheless, based on the evidence presented in this case, I do not find that this inconsistency affects the outcome of this appeal.  It is one statement among all the other evidence, and could arguably have more than one explanation, such as petitioner being frequently present at the in-district address for purposes of childcare, work schedules, overnight stays or to care for a family member who is ill (see e.g., Appeal of Tashoff, 50 Ed Dept Rep, Decision No. 16,140).  This inconsistency is not dispositive of petitioner’s residency, as the evidence submitted by petitioner in support of residency is not persuasive.  I find no basis to disturb the conclusion that petitioner has failed to meet her burden of demonstrating the required physical presence and intent to remain in the district for purposes of establishing residency or that respondent’s non-residency determination was not arbitrary, capricious or unreasonable. 

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her daughter’s behalf at any time, and to present any information bearing on her daughter’s residency for respondent’s consideration.

 

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Respondent defines this as “a situation in which a parent and child say that they are living in someone else’s residence.”

2 I note that, in another pending appeal (Appeal of Norman, Appeal No. 19,857), petitioner claims that she and her daughter also reside at the instant petitioner’s mother’s in-district residence.

3 Neither party has submitted a copy of the November 19, 2013 letter.

4  It is noted that the attendance teacher in the Norman appeal is the same individual as the second teacher in the instant appeal.