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Decision No. 16,986

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 16,986

(October 31, 2016)

Keane & Beane, P.C., attorneys for respondent, Suzanne E. Volpe and Stephanie L. Burns, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of White Plains ("respondent") that his son, a student with a disability (“the student”), is not a district resident.  The appeal must be sustained.

The student began attending schools in respondent’s district in January 2016.  At that time, the student’s mother indicated that she and the student lived in White Plains, New York (the “original in-district address”).  As proof of the student’s residency, the student’s mother submitted a lease agreement for the original in-district address, which identified her and petitioner as the occupants.  On March 1, 2016, the assistant principal of the student’s school completed an investigation form regarding the student’s residence.  According to the investigation form, the student told his teacher that he resided with his mother at an address in Yonkers, New York (the “out-of-district address”), and that his mother drove him to his grandmother’s house, located within respondent’s district, where he was picked up by the school bus.  The district subsequently commenced an investigation into the student’s residency on March 3, 2016.

An investigator visited both the original in-district address and the out-of-district address on March 10, 2016 between 6:00 p.m. and 7:00 p.m.  At the original in-district address, the investigator rang a buzzer but no one came to the door.  At the out-of-district address, the investigator observed a car parked in the driveway.  The investigator conducted research and discovered that the car was registered to the student’s mother at the out-of-district address.  The district proceeded to conduct surveillance of the out-of-district address on four days: March 17, 18, 29, and 31, 2016.  On each of these dates, the investigator observed the mother leaving the house with the student, entering the car, and departing the residence.  The investigator completed a report on April 3, 2016, which concluded that the student resided at the out-of-district address.

On April 8, 2016, respondent’s assistant superintendent for business wrote to the student’s mother stating that the student may not be a resident of the district and requesting additional information.  In response, the mother provided the assistant superintendent with a copy of an apartment lease dated March 22, 2016, and a cable/internet statement, each of which referenced petitioner and a second in-district address (“second in-district address”).  After receiving these documents, the district requested that the investigative company conduct additional surveillance.

On April 25, 2016, an investigator visited the out-of-district address for approximately 40 minutes in the evening and observed the car parked at the residence and no activity.  The investigative company proceeded to conduct surveillance at the out-of-district address on April 27 and 28, 2016.  On both of these dates, the investigator witnessed the student and his mother exit the out-of-district address in the morning, enter the car, and leave the residence.  At this point, the investigator contacted a second investigator who proceeded to the student’s school.  The second investigator observed the student and his mother arrive at the school on April 27 and 28, 2016.  The investigative company completed a second report on April 29, 2016 which again concluded that the student resided at the out-of-district address.

On April 29, 2016, respondent’s assistant superintendent for business informed the student’s mother of the district’s determination that the student was not a district resident and that his last day of school would be May 13, 2016.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 13, 2016.

Petitioner alleges that the student resided with him at the original in-district address until March 1, 2016.  He further alleges that he and the student’s mother separated in March 2016 and that on March 23, 2016, he and the student moved into the second in-district address.  Petitioner also alleges that his lease of the second in-district address was executed on March 22, 2016.  Petitioner additionally avers that he works irregular hours, and that the student stays with his mother at the out-of-district address, which is owned by the student’s grandmother, three days per week.  Petitioner also states that the student spends equal time with both parents and, thus, the determination of the student’s residence rests with him and the student’s mother.

Respondent argues that its determination, based upon surveillance and documentary evidence, was neither arbitrary nor capricious and must be upheld.  Respondent further asserts that petitioner’s appeal must be dismissed for failure to join the student’s mother because she is a necessary party.

In his reply, petitioner raises additional contentions supporting his request for relief.  Petitioner also states that his failure to join the mother as a party was an inadvertent error.  To this end, petitioner submits an affidavit of verification from the student’s mother in which she avers that the contents of the petition are truthful.

First, I must address two procedural matters. Petitioner submits a reply together with additional exhibits.  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.

Respondent argues that the appeal should be dismissed for failure to join the student’s mother as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The record in this appeal contains evidence clearly indicating that the student’s mother supports petitioner’s appeal. It is evident that her desire is to have the student attend school in respondent’s district and therefore her rights would not be adversely affected by a determination in petitioner’s favor (see Appeal of Schillaci, 53 Ed Dept Rep, Decision No. 16,570; Appeal of Riccinto, 46 id. 39, Decision No. 15,435). Therefore, I will not dismiss the appeal on this basis.

Turning to the merits, Education Law §3202(1) provides, in pertinent part, as follows:

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).

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).

In this case, respondent’s limited surveillance evidence does not support its determination.  Specifically, respondent’s determination is not supported by sufficient evidence to contradict petitioner’s allegation that his son resides with him at the second in-district residence, such as a home visit or surveillance evidence that cannot be explained by petitioner.  Respondent was put on notice as to the existence of the second in-district address when the student’s mother provided the district with a copy of the apartment lease in April 2016.  The investigative reports for April 27 and 28, 2016 indicate that, after the investigator observed the student’s mother leaving the out-of-district address, he contacted a second investigator who subsequently drove to the student’s school and witnessed the student’s mother drop him off.  The surveillance reports do not indicate the location of the second investigator prior to his arrival at the school and are silent as to whether any surveillance of the second in-district address occurred. Nevertheless, the investigator submitted an affidavit on appeal contending that the second investigator surveilled the second in-district address prior to driving to the student’s school on the mornings of April 27 and 28, 2016. However, evidence that petitioner’s son was not observed at the second in-district address on two days on which petitioner’s son was observed leaving the out-of-district address and arriving at school is not probative in light of petitioner’s explanation for his son’s presence at his mother’s residence.

Petitioner alleges that he and his son reside at the second in-district residence and has submitted a lease agreement for the second in-district address dated March 22, 2016 which was subsequently revised to specifically list the student as an occupant.[1]  Petitioner also provides an alternative explanation of the district’s surveillance evidence.  Specifically, petitioner asserts that he and the student’s mother have lived apart as of March 1, 2016; that the student spends equal time with him and the student’s mother; and that the student stays with his mother and grandparents for three days a week at the out-of-district address due to petitioner’s irregular work hours.  This account is consistent with the district’s surveillance evidence described above, and respondent does not respond to petitioner’s assertions on appeal.

Thus, petitioner has offered an explanation of the surveillance evidence that explains his son’s physical presence with his mother at the out-of-district residence and I do not find respondent’s surveillance evidence to be persuasive evidence that petitioner and his son do not reside at the second in-district address.

On the record before me, I find that petitioner has met his burden of proof and that respondent’s determination that the student does not reside in the district is not supported by the record and must be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the Board of Education of the White Plains City School District admit the student to the schools of the district without the payment of tuition.

END OF FILE


[1] Respondent makes much of the fact that, on appeal, petitioner has submitted an amended copy of the March 22, 2016 lease agreement which identifies the student as an occupant, while the original lease did not do so.  However, respondent cites no legal authority in support of its contention that petitioner was required to identify the minor student as an occupant in the lease.  Moreover, petitioner has submitted a letter from the community manager of the apartment complex in which petitioner resides indicating that the failure of the original lease to list the student as an occupant was an error and it was the lessor’s understanding that the student has resided with petitioner at the second in-district residence since March 22, 2016.