Appeal of IMELDA BURGESS, on behalf of her children LAUREN and JOSHUA, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 17,178

(August 31, 2017)

Ingerman Smith L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that her children, Lauren and Joshua (“the students”), are not district residents.  The appeal must be sustained.

The record indicates that petitioner owns a home within respondent’s district (“in-district address”) and that her husband, from whom she is separated, resides at an address outside of respondent’s district (“out-of-district address”). Petitioner’s children began attending respondent’s schools during the 2015-2016 school year.

During the 2015-2016 school year, respondent conducted surveillance at the in-district address on three different occasions and did not observe the students enter or exit the residence.  Between February 2, 2016 and February 24, 2016, the students were observed entering or exiting the out-of-district home on nine separate occasions.  The record indicates, and I take administrative notice that, petitioner’s residence during the 2015-2016 school year was the subject of an appeal pursuant to Education Law §310 (Appeal of Burgess, 56 Ed Dept Rep, Decision No. 16,946).  That appeal was dismissed as moot because respondent withdrew its adverse residency determination and permitted the students to continue to attend its schools for the remainder of the 2015-2016 school year.

Prior to the 2016-2017 school year, petitioner again registered the students in respondent’s district identifying the in-district address as her current address.  Thereafter, respondent conducted surveillance of both the in-district and out-of-district addresses. 

The record indicates that surveillance was conducted on 26 days between September 23, 2016 and February 6, 2017.  Some of these dates included observations of multiple locations on the same date.  The record indicates that the district conducted twelve observations of the in-district address between these dates.  The description of the surveillance conducted at the in-district address, submitted with the instant appeal, largely consists of statements about whether or not a red pickup truck registered to petitioner’s husband, from whom she is separated, was parked in the driveway. The surveillance reports indicate that petitioner was observed entering and exiting the in-district address on a single day, January 12, 2017.

The surveillance reports further indicate that the investigator conducted a significant portion of his surveillance from various intersections in the vicinity of the out-of-district address.  Such surveillance reports generally describe seventeen occasions when the red pickup truck was observed transporting the students “heading to,” or appearing to come from, the out-of-district address.  Of the 26 days of surveillance in the 2016-2017 school year, petitioner was directly observed at the out-of-district address on three days, and was accompanied by one or both of the students on two of those days.

By letter dated February 6, 2017, hand-delivered to petitioner at the out-of-district address, respondent’s administrative assistant for central registration (“assistant”) and superintendent informed petitioner that her children were not residents of the district and would be excluded from respondent’s schools after February 6, 2017.  The letter included information regarding petitioner’s right to appeal this determination to the assistant and to the Commissioner of Education pursuant to Education Law §310.  The students were thereafter excluded from respondent’s schools.

Petitioner appealed the determination to the assistant and an administrative review was held on or about February 7, 2017.[1]  The record indicates that petitioner presented her driver’s license at the administrative review, which listed the out-of-district address, and explained that she and her husband are separated and that the children sleep at both the in-district and out-of-district residences depending on the work schedules of petitioner and her husband.[2]  Additionally, petitioner avers on appeal that she provided respondent several documents which supported her claim of residency within the district.  These documents included notarized letters from petitioner’s mother, her husband, and a neighbor all stating that petitioner and her children reside within the district; letters from the students’ doctor and dentist indicating the in-district address as petitioner’s address; a satisfaction of mortgage statement for the in-district property in the name of petitioner and her parents; school and town tax statements in the name of petitioner’s mother; an electric bill and a gas bill. 

On February 8, 2017, petitioner received a phone call from the assistant’s office indicating that the students could not return to school.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 27, 2017.

Petitioner asserts that she shares custody of the students with their father, from whom she is separated.  Petitioner further asserts that respondent did not comply with 8 NYCRR §100.2(y) because it did not afford her an opportunity to demonstrate her residence within the district before rendering its determination.  Petitioner asserts that following the separation, she left the marital home and moved with her children to a home she owns within the district where she resided prior to the marriage.  Petitioner asserts that the students stay with her at the in-district address approximately four or five nights a week, and with their father at the out-of-district address for the remainder of the week.  Petitioner seeks a determination that the students are residents of respondent’s district and are entitled to attend its schools without the payment of tuition.

Respondent contends that petitioner is not a resident of the district and that the petition should be dismissed.  Additionally, respondent objects to the late submission of petitioner’s reply.

I must first address a procedural matter.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).

However, Commissioner’s regulation §276.3 provides that the Commissioner may permit an extension of time to answer the petition or reply to an answer upon good cause shown and upon such terms and conditions as the Commissioner may specify (8 NYCRR §276.3).  Although petitioner failed to request an extension of time to reply in accordance with §276.3 of the Commissioner’s regulations, I will accept her reply in light of the fact that she is proceeding pro se and because her delay of less than a week was de minimus and resulted in no prejudice to respondent (Appeal and Application of Lombardo, 37 Ed Dept Rep 721, Decision No. 13,967).

Nevertheless, 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.

I note that petitioner’s reply includes allegations and exhibits responding to respondent’s surveillance and investigation.  I will consider that information as responsive to new material submitted by respondent.  There is no indication in the record that petitioner was presented with, or aware of, the surveillance or investigatory information prior to receipt of respondent’s answer.  Indeed, respondent’s February 6, 2017 letter did not mention the surveillance, only stating that it “has been determined” that the students did not reside in the district.  There is also no indication in the record that, at the residency review meeting on or about February 7, 2017, respondent revealed the surveillance or other information it had obtained.  Therefore, I have considered petitioner’s explanatory information regarding the surveillance contained in her reply as evidence responsive to new material in the answer (see Appeal of Diaz, 54 Ed Dept Rep, Decision No. 16,734).

Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).

Petitioner alleges that she did not have the opportunity to challenge respondent’s decision.  Although an administrative review was held after February 6, 2017, the record does not include any evidence that respondent provided petitioner with written notice of its final determination that the students were not residents of the district and would be excluded from school prior to such exclusion, as required by 8 NYCRR §100.2(y).  I remind respondent of its obligation to comply with all of the requirements outlined in Commissioner’s regulation §100.2(y).

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).

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).

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).

Respondent relies primarily on surveillance evidence it obtained over a period of approximately six months – from September 23, 2016 through February 6, 2017.  However, I do not find this surveillance persuasive evidence of petitioner’s residency status.  While the record indicates that respondent conducted significant surveillance, the 2016-2017 surveillance reports show that petitioner was only observed exiting the out-of-district residence on three days and was accompanied by one or both of the students on two of those three occasions.  Petitioner was also observed at the in-district address on one additional occasion.  Petitioner’s observed presence at the out-of-district address on only three occasions over six months is consistent with her explanation that the students stay with their father at the out-of-district address on two or three nights a week, and that she brings the students to school when their father has to leave early for work.

Additionally, 16 of the 26 surveillance reports which respondent argues establish the students’ presence at the out-of-district address did not include direct observation of the out-of-district address.  Instead, surveillance was conducted at different intersections which were in the vicinity of the out-of-district address.  At these locations, the investigator stated that he observed the mother driving “her” red pickup truck and it “appeared” that she was coming from or “heading toward” the out-of-district address.

Because most of the surveillance reports contain such conclusory statements about the location of the vehicle registered to the out-of-district homeowner, the record does not clearly indicate whether petitioner and/or the students came from or returned to the out-of-district address on those occasions.  Furthermore, petitioner explains that the location from which respondent often conducted the surveillance is near a diner which she and the students frequently visit for breakfast and/or dinner.

The investigator also deemed the presence or absence of the red pickup truck probative of petitioner’s presence, or lack thereof, at each of the two residences.  Indeed, a significant portion of the surveillance conducted at the in-district address merely stated that the red pickup truck was not parked in the driveway of the in-district address.  However, the record indicates that the red pickup truck is registered to petitioner’s husband who, as discussed above, resides at the out-of-district address and is separated from petitioner.  Petitioner further explains that she does not own the red pickup truck, but that she sometimes borrows the vehicle to assist in transporting the students. 

Petitioner additionally asserts, and provides documents proving that, she suffered an injury resulting in two broken ribs and a fractured shoulder on October 9, 2016.  This injury required petitioner to hire a nurse to care for her at the in-district address from October 17, 2016 through December 23, 2016. Petitioner states that during this time, the students mostly stayed with their father during the school week.  Petitioner further disputes the investigator’s contention that she drove the children in the red pickup truck during this time period, asserting that the driver was in fact the girlfriend of her estranged husband.  Additionally, petitioner asserts that when respondent’s investigator observed petitioner driving the red pickup truck to the in-district address on the morning of January 12, 2017, she was doing so because she had borrowed the vehicle to attend physical therapy.

The only date when petitioner was observed with both of the students leaving the out-of-district address and entering the vehicle was February 6, 2017, the same date on which respondent’s investigator hand-delivered the residency determination to petitioner.  Petitioner avers that she was at the out-of-district address on that morning because the students spent the previous night with their father to attend a Super Bowl party, and petitioner picked the students up there and brought them to school the next morning because the students’ father had to leave early to go to work.

Although, as noted above, the mere fact that petitioner owns the in-district residence does not necessarily confer residence status.  However, on the totality of this record, I find that, in light of petitioner’s explanations and documentary evidence including a mortgage statement, utility bills, the students’ library cards, medical correspondence, and what appear to be photographs of the students’ rooms at the in-district address, respondent’s inconclusive surveillance does not support its conclusion that petitioner and the students reside at the out-of-district address (see e.g. Appeal of A.N., 57 Ed Dept Rep, Decision No. 17,132; Appeal of A.D.J., 56 id., Decision No. 16,973).  While I acknowledge respondent’s concerns related to the students’ physical presence within the district, petitioner has met her burden of proof and the evidence in the record does not support the district’s determination.  On this record, I find that the evidence relied upon by respondent to show that petitioner and the students reside at the out-of-district address is inconclusive and does not conflict with petitioner’s explanations as described herein.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit petitioner’s children to attend school in the Uniondale Union Free School District without payment of tuition.

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