Decision No. 17,479
Appeal of NAKIA ULLOA, on behalf of her daughter NOHEALANI FERNANDO, from action of the Board of Education of the Elmont Union Free School District regarding residency.
Decision No. 17,479
(August 13, 2018)
Colum P. Nugent, Esq., attorney for respondent
ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that her daughter (the “student”) is not a district resident. The appeal must be dismissed.
Petitioner and the student’s father registered the student in respondent’s district on or about March 28, 2014. Petitioner identified the student’s address as an address located within the geographical boundaries of respondent’s district (the “in-district address”).
On or about October 24, 2017, a secretary at the student’s school submitted a “Request for Verification of Residence” form to the district’s central registrar. The form indicated that the student was “[c]onsistently late” according to the principal of the student’s school. Respondent proceeded to conduct an investigation into the student’s residency.
A security guard employed by respondent conducted surveillance of the in-district address in the early morning on November 17, 27, and 29, 2017. On each date, the security guard saw an adult female and two teenagers exit the in-district address, enter a vehicle, and drive away. On each day of surveillance, the security guard did not observe petitioner or the student and subsequently called the student’s school, where it was confirmed that the student was present in class.
An investigator then conducted surveillance of an address in Queens, New York, which was listed as the student’s father’s address on the student’s registration form (the “out-of-district address”) on December 21 and 22, 2017 as well as January 3 and 8, 2018. On December 21 and 22, 2017, the student exited the out-of-district address with her father, entered a vehicle, and drove away. On January 3 and 8, 2018, the student exited the out-of-district address with petitioner, entered a vehicle, and drove away.
In a letter dated January 12, 2018, respondent’s superintendent indicated that the student did not reside within respondent’s district and would be excluded from its schools as of January 19, 2018 unless petitioner appealed the determination to the central registrar. Petitioner submitted an appeal to the central registrar in a letter dated January 16, 2018.
Respondent thereafter conducted a formal residency hearing, presided over by a hearing officer, on February 14, 2018. Petitioner, while informed of her right to be represented by counsel, appeared at the hearing pro se. At the hearing, petitioner and the district introduced testimonial and documentary evidence.
In a written decision dated April 8, 2018, the hearing officer concluded that the student was not a resident of respondent’s district. This appeal ensued. By letter dated May 14, 2018, respondent’s attorney informed my Office of Counsel that respondent would permit the student to attend its schools during the pendency of this appeal. Consequently, petitioner’s request for interim relief was determined to be moot.
Petitioner contends that the student resides at the in-district address with petitioner, the student’s grandmother, petitioner’s stepfather, petitioner’s aunt and her two children. Petitioner admits that the student occasionally stays at the out-of-district address but asserts that this is “not the norm.” Petitioner indicates that the student spends time at the out-of-district address for child care purposes, and that the student spent more time with her father at the out-of-district address while the student’s father was out of work due to disability from September 2017 through January 2018. Petitioner requests a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.
Respondent contends that the student resides at the out-of-district address. Respondent argues that the hearing officer’s decision must be affirmed because it was well-reasoned and that his credibility determinations are entitled to deference.
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).
With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of T.S., 57 Ed Dept Rep, Decision No. 17,233; Appeal of C.S., 48 id. 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909).
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).
Here, petitioner has failed to meet her burden of proving that she resides at the in-district address. As indicated above, respondent convened a residency hearing before a hearing officer to determine petitioner’s residency. Petitioner was afforded a full and fair opportunity to demonstrate that she was a district resident at this hearing. Following such hearing, the hearing officer rejected petitioner’s claim that she resided in the district as not credible.
The hearing officer began his analysis by finding that the security’s guard’s surveillance demonstrated that the student did not reside at the in-district address, and the investigator’s surveillance demonstrated that the student instead resided at the out-of-district address. The hearing officer also found it probative that two cars, including the car which petitioner and the student’s father were seen driving during the surveillance period, were jointly registered to both petitioner and the student’s father. Considering the surveillance, vehicle registration evidence and petitioner’s testimony that she and the student’s father were engaged to be married, the hearing officer found that this evidence, collectively, constituted “strong circumstantial evidence that [petitioner] resides at the [out-of-district] address.”
The hearing officer further found that petitioner’s explanation of the student’s presence at the out-of-district address was not credible due to inconsistencies in her testimony. Specifically, petitioner initially testified that she spent two or three nights per week at the in-district address but later changed her testimony to four or five nights per week. The hearing officer reasoned that this demonstrated that petitioner was either “unclear of her and the [c]hild’s residence” or that petitioner “realized her error ... and attempted to correct the error.” Additionally, the hearing officer noted that petitioner testified that the in-district address has three bedrooms, while her mother, the owner of the in-district address, testified that it has four bedrooms.
On appeal, petitioner does not explain why the hearing officer’s determinations were unsupported by the facts in the record. Although petitioner presents an explanation which theoretically explains the student’s presence at the out-of-district address – i.e., that the student spent more time with her father while he was temporarily out of work -the hearing officer considered and rejected this explanation in his decision, finding that petitioner lacked credibility and that the weight of the evidence in the record supported respondent’s determination. There is no evidence in the record upon which to reverse the hearing officer’s determinations and, thus, I am constrained to dismiss the instant appeal.
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, should circumstances change, and to present any information for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 According to the record, this form is completed by the district when there are concerns that a student may not reside at the address which was provided to the district.
 According to the record, the adult was petitioner’s aunt, and the teenagers were the aunt’s children.
 In this respect, I note that petitioner did not explain at the hearing, and does not explain on appeal, why she was observed leaving the out-of-district address with the student on the mornings of January 3 and 8, 2018.