Decision No. 17,430
Appeal of M.S., on behalf of her daughter A.S., from action of the Board of Education of the Nanuet Union Free School District regarding residency.
Decision No. 17,430
(July 5, 2018)
Lawrence B. McCarron P.C., attorney for petitioner, Lawrence B. McCarron, Esq., of counsel
Mario Spagnuolo, Esq., attorney for respondent
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Nanuet Union Free School District (“respondent”) that her daughter (“the student”) is not a district resident. The appeal must be dismissed.
During the 2017-2018 school year, the student was a junior and attended respondent’s high school. According to petitioner, the student “has always resided” with her at the in-district address. According to respondent, it received information that the student moved out of the geographical confines of the district and thus, by letter dated October 24, 2017, it requested “verification that [the student] does live in Nanuet.” In an affidavit, respondent’s registrar (“registrar”) states that petitioner “provided some information about her own residency but informed the [d]istrict that the student does not always reside with her.” Thereafter, respondent commenced a residency investigation and retained an investigator to conduct surveillance. An investigation report (“report”) submitted by respondent on appeal indicates that, in response to respondent’s letter dated October 24, 2017, petitioner stated that the student “does stay occasionally at her sister’s place in Suffern” (“out-of-district address”). The report also indicates that the student drives a black Jeep with vanity license plates. The record indicates that the Jeep is registered to the student’s sister’s “significant other,” and that this individual also owns the out-of-district address.
Surveillance was conducted on nine weekdays in November 2017, and included observation at the out-of-district address, the high school, and “the area” of the high school. In an affidavit submitted with this appeal, respondent’s registrar states that “[t]he investigator determined that [the student] lives at [the out-of-district address] based on observations taken on six different dates at various times of the day.” While the record is not entirely clear, it appears that respondent communicated with the student and told her that it had determined that she was not a resident of respondent’s district and, therefore, was not entitled to attend its schools. In its answer, respondent asserts that the student was informed that the district had determined that she was not a district resident “on or about December 1, 2017.” This appeal ensued. Petitioner’s request for interim relief was granted on December 22, 2017.
Petitioner claims that she and the student reside at the in-district address, that she “exercise[s] control over [the student’s] activities and wellbeing and ha[s] not surrendered any parental control....” Also attached to the petition is an unsworn statement from the student stating that “while attending [respondent’s] High School” she has always resided at the in-district address with her mother and older sister and has “always returned home after school.” Finally, petitioner claims:
For health reasons and also for part-time work [the student] will sometimes stay with her sister ... [at the out-of-district address] to take care of her sister’s pets while her sister is traveling or at work.
Respondent argues that the petition should be dismissed because the student resides at the out-of-district address. Respondent further argues that the petition and the student’s unsworn statement are “inconsistent with both [the student’s] admission and the observations of the private investigator.” Finally, respondent requests that I disregard the student’s unsworn statement.
I must first address a procedural matter. Respondent requests that I disregard the student’s unsworn statement attached to the petition. Although respondent is correct that the student’s statement is unsworn, I have accepted it and afforded it the appropriate weight which it is due as an unsworn statement (see Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). “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 Powell, 57 Ed Dept Rep, Decision No. 17,320). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320).
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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
To support her claim of residency within respondent’s district, petitioner submits a copy of the student’s driver’s license and four earnings statements from the student’s part-time job, all bearing the in-district address. While petitioner admits that the student “occasionally” stays at the out-of-district address, she explains that the student does so for health and work reasons.
In response, respondent substantially relies on its surveillance evidence. Respondent also submits an affidavit from its assistant principal in which she avers that the student told her that “she could not take the bus because she does not live with her mother” and that “she lived with her father and that it was impossible to take the bus.”
Respondent’s investigator conducted surveillance at the out-of-district address on nine weekdays between November 13 and November 28, 2014. As indicated above, respondent submits a copy of the report on appeal. In addition to the Jeep mentioned above, the report references two other vehicles, a gray Mini registered to the sister’s significant other, and a white Ford registered to petitioner. On the initial day of surveillance, the investigator “canvassed the area” of the high school in the morning and observed the out-of-district address in the afternoon. According to the report, on that day, the investigator “visually verified that the Black Jeep that the student has been seen driving was at [the out-of-district residence].”
On the other eight days, surveillance was conducted in the morning at the out-of-district residence and at the entrance to respondent’s high school. On each day at approximately 6:00 a.m., the report indicates whether any of the abovementioned vehicles (i.e. the Jeep, Mini or Ford) were in the driveway of the out-of-district address. On all but one occasion, the investigator then proceeded to observe the entrance to respondent’s high school and indicate whether any of the three vehicles noted at the out-of-district address were then present at the school.
On November 28, 2017, the gray Mini registered to the student’s sister’s significant other was observed at 6:00 a.m. parked in the driveway of the out-of-district address. It was then observed arriving at the high school, “dropping off” the student between 7:15-7:30 a.m.
On November 14, 15, 17, and 21, 2017, the white Ford registered to petitioner was observed at 6:00 a.m. parked in the driveway of the out-of-district address and then observed arriving at the high school and “dropping off” the student between 7:15-7:30 a.m. These reports do not identify who exited the out-of-district address; when they exited; who drove the vehicle; the presence or absence of any passengers; or if the vehicle made, or had time to make, any additional stops between the out-of-district address and the high school.
On two days of surveillance, November 16 and 22, 2017, the student was observed arriving at the high school in the Ford, but the Ford was not present at the out-of-district address during the investigator’s 6:00 a.m. observation. The report does not include any surveillance of the in-district address and makes no mention of petitioner. It is unclear therefore, where the Ford was parked before the student arrived at school on those two days.
On November 20, 2017, the Ford was observed parked at the out-of-district address at 6:00 a.m. but was not observed at the high school. The report indicates that the investigator contacted the registrar at 8:00 a.m. that day and confirmed that the student was in school.
I do not find respondent’s limited surveillance conclusive of the student’s residence at the out-of-district address. However, respondent has also submitted a sworn, unrebutted statement from the assistant principal averring that the student told her that she was not living with petitioner and was living with her father. While the unsworn statement from the student submitted with the petition states that while attending high school the student has “always resided at [the in-district address] with [her] mother as well as with [her] older sister ...,” this is insufficient to rebut the assistant principal’s sworn statement.
Petitioner, who is represented by counsel, submits no reply or other evidence, such as affidavits from neighbors, the student’s sister or the sister’s significant other to rebut respondent’s assertions. In support of her contention that the student resides at the in-district address, petitioner submits limited documentary evidence consisting of a copy of the student’s driver’s license and paystubs. However, such documents do not establish the student’s physical presence in respondent’s district, particularly considering that such address is her mother’s residence (see Appeal of R.E., 57 Ed Dept Rep, Decision No. 17,213). At best, I find that the evidence from the parties - petitioner’s verified petition, limited documentary evidence and unsworn statement from the student and respondent’s limited surveillance evidence and affidavit from the assistant principal - is in equipoise, and therefore, I am constrained to find that petitioner has not met her burden of proof on this record.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of the student in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Although not raised by petitioner, I note that the record does not include copies of any correspondence communicating this decision and I remind respondent of its obligation pursuant to 8 NYCRR 100.2(y)(6) to provide 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.
 Petitioner does not give any detail about the “health reasons” and indicates in the petition only that “it is extremely sensitive and personal to my daughter.”
 According to respondent, the student refers to her sister’s significant other as her father.
 I note that while the Jeep was present at the out-of-district address on seven of those mornings, the report does not include any observation(s) of the student driving, or riding in, the Jeep.
 The report of November 22, 2017 indicates that the Ford arrived at the out-of-district address at 6:40 a.m. that day, but again does not indicate if the student or petitioner was seen leaving the out-of-district address.