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Decision No. 17,494

Appeal of DAYNA MAURO, on behalf of her daughter ISABELLA BASILE, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 17,494

(August 30, 2018)

Bond Schoeneck & King, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel

 

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

On August 8, 2017, petitioner attempted to register the student in respondent’s district, asserting that she, the student and the student’s grandmother resided at an address located within respondent’s district (the “in-district address”).  In the registration paperwork, petitioner identified an address located in the Bronx, New York as her previous address (the “out-of-district address”).

On August 24, 2017, after visiting the in-district address, respondent denied petitioner’s request to register the student, asserting that the student did not reside with petitioner at the in-district address. 

In September 2017, petitioner submitted documentation bearing the in-district address to substantiate her claim of residence within respondent’s district; namely, a driver’s license, utility bill, bank statement, and a credit card bill.  Petitioner also submitted a copy of a lease agreement between petitioner and her mother for the in-district address and letters from the building superintendent of the in-district address (“building superintendent”) and the president of the co-op complex which stated that petitioner and the student had resided at the in-district residence with petitioner’s mother as of August 2017.  Based upon this information, respondent admitted the student to its schools as a district resident.

In November 2017, respondent became aware of two incidents which prompted it to question the student’s residency.  First, an individual overheard the student state that her parents did not reside in New Rochelle.  Second, an anonymous resident contacted the district and stated that petitioner had asked a friend “what ... she needed to do to establish a purported residency in New Rochelle....”  Respondent thereafter initiated an investigation into the student’s residency.  The district arranged for an attendance teacher to conduct surveillance.

The attendance teacher’s investigation revealed evidence suggesting that petitioner resided at the out-of-district address.  Although not entirely clear, according to a report submitted by the attendance teacher (“report”), surveillance was conducted at the out-of-district address on at least 21 occasions between September 14 and November 1, 2017.[1]  The report indicates that the attendance teacher observed petitioner and/or her vehicle at the out-of-district address on at least 17 occasions.  The attendance teacher did not observe the student on any of the dates of surveillance.  Although the report states that petitioner and/or her vehicle “were not found to be present at [the in-district address] at any time since the date of 9/13/17, following the student’s enrollment,” and the director of pupil services (“director”) avers that surveillance was conducted at the in-district address, the report does not indicate the dates on which any surveillance was conducted at the in-district address.

By letter dated November 22, 2017, respondent’s director notified petitioner of her preliminary determination that the student was not a district resident.  The director informed petitioner that she could submit additional information to substantiate her claim of residency within the district by December 8, 2017. 

On November 27, 2017, petitioner submitted the following information bearing the in-district address to respondent: a letter from her bank, a letter from a bank addressed to her mother, two utility bills, a loan statement, and receipts reflecting payment of rent.  After petitioner submitted such additional documentation, respondent observed both the in-district address and the out-of-district address on five occasions between November 28 and December 4, 2017.  Petitioner’s vehicle was observed parked at, in front of, at the back of, or in the driveway of the out-of-district address on each of these occasions.  The student and petitioner were not observed at the in-district address on any of the dates of surveillance.

In a letter dated December 8, 2017, the director informed petitioner of the district’s determination that the student was not a district resident and that the student would not be allowed to attend respondent’s schools after December 22, 2017.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 4, 2018.

Petitioner admits that she previously resided at the out-of-district address with her spouse but asserts that she and the student moved to the in-district address in August 2017 after she separated from her spouse.  Petitioner also indicates that her “primary employment” is at a hair salon located at the out-of-district address, and that she leaves the in-district address “very early in the morning and arrive[s] back very late at night.”  Petitioner further contends that her former spouse “is himself sick”; that her former spouse lives with petitioner’s son, who also has health issues; and that petitioner often leaves the in-district address “early ... so that I [can] help my son get ... ready for school....”  Petitioner contends that the documents which she submitted to respondent prove that she and her child live with petitioner’s mother at the in-district address.  Petitioner further asserts that the student has her own bedroom, clothes and belongings at the in-district address, and that respondent would have discovered this if it had conducted a home visit.  Petitioner requests a determination that the student resides at the in-district address and, thus, is entitled to attend respondent’s schools without the payment of tuition.

Respondent asserts that its surveillance evidence demonstrates that petitioner does not reside at the in-district address.  Respondent also points to inconsistencies in the documentation submitted by petitioner to substantiate her residency; namely, that the documents reflect varying move-in dates and monthly rent payments for the in-district address.

First, I must address a procedural issue.  Petitioner served a reply in this matter on January 30, 2018.  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).  Respondent’s verified answer was served upon petitioner by mail on January 11, 2018 and petitioner served her reply upon respondent on January 30, 2018.  Petitioner admits in her reply that she did not timely serve respondent but asserts that she received the answer on January 24, 2018 and served her reply shortly thereafter.  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; that the delay of four days was de minimis; and that there is no evidence that respondent was prejudiced by the delay (Appeal of Lombardo, 37 Ed Dept Rep 721, Decision No. 13,967).

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).

On this record, I find that petitioner has not met her burden of proving that she resides at the in-district address.  Petitioner submits documentary evidence bearing the in-district address to support her claim of residence; namely, a copy of her driver’s license; a utility bill for the period from July 11 through August 15, 2017; a receipt reflecting payment of a utility bill on August 30, 2017; a bank statement dated August 16, 2017; a letter from a branch services manager at a bank; and a lease agreement between petitioner and her mother dated August 15, 2017.  Petitioner also submits a letter from the building superintendent of the in-district address dated August 30, 2017, a letter from petitioner’s mother dated August 30, 2017 and a letter from the president of the co-op complex for petitioner’s mother’s in-district address dated September 9, 2017, each of which indicate that petitioner and the student reside at the in-district address with petitioner’s mother.

While this documentary evidence is entitled to some weight, it is not dispositive where contrary surveillance evidence exists, particularly in light of the fact that the in-district residence appears to be owned by petitioner’s mother (see Appeal of Brown, 54 Ed Dept Rep, Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).  Indeed, respondent conducted surveillance on approximately 22 days between September and December 2017, during which petitioner and/or her vehicle were consistently observed at the out-of-district address at various times of the day ranging from 5:50 a.m. to 11:45 p.m.

Although petitioner alleges that she works at a hair salon located at the out-of-district address and occasionally visits her son and her former spouse, who is sick, she has produced no proof in support of these contentions.  For example, there is no evidence in the record that petitioner or anyone else operates a hair salon at the out-of-district address.  Further, petitioner has not produced any evidence that her son or former spouse resides at the out-of-district address, or that her former spouse is sick and in need of care.  Therefore, on this record I cannot credit petitioner’s explanation of her presence at the out-of-district address.

Additionally, I agree with respondent that inconsistences in petitioner’s documentation further support its determination of non-residency.  The president of the co-op complex for petitioner’s mother’s in-district address identified the date on which petitioner moved in to the in-district address as August 13, 2017, while the building superintendent stated that it was August 16, 2017.  Petitioner alleged in the residency paperwork which she submitted to respondent that she moved in on August 14, 2017, while her mother indicated that petitioner moved in on August 21, 2017.  Additionally, in the registration paperwork, petitioner and her mother indicated that petitioner was only responsible for utility costs at the in-district address, while the lease agreement reflects that petitioner is responsible for monthly rent of $1,500.  While not dispositive of the student’s residency, this evidence nevertheless supports respondent’s determination.

Finally, I find no merit to petitioner’s argument that respondent’s surveillance evidence lacks probative value because the student was not observed at the in-district or out-of-district addresses.  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).  Here, there is no evidence of a transfer of custody and control of the student from petitioner to another.  Indeed, petitioner asserts in her petition that she is “the only one ... who exercises control” of the student and that she “ha[s] not surrendered control over [the student] to anyone.”  Therefore, the student presumptively resides with petitioner, and the record supports a finding that petitioner resides at the out-of-district address.

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

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

 

[1] The attendance teacher conducted surveillance in both the morning and afternoon of two of these dates.