Decision No. 17,722
Appeal of T.H., on behalf of her children N.H., G.T. II, G.T. III, G.T. IV, and T.T. from action of the Board of Education of the Valhalla Union Free School District regarding residency.
Decision No. 17,722
(August 7, 2019)
Student Advocacy, Inc., attorneys for petitioner, Edith Rosenbaum & Janine Montoni, Esqs., of counsel
Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel
ELIA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Valhalla Union Free School District (“respondent”) that her children (the “students”) are not district residents. The appeal must be dismissed.
On or about May 2018, petitioner indicates that she began to care for her grandfather, who lived at a home located within respondent’s district (“the in-district address”); according to the record, this home is owned by petitioner’s aunt. Petitioner further asserts that she “moved permanently” to the in-district address on or about July 2018.
In September 2018, petitioner registered the students in respondent’s district, identifying the in-district address as their residence. As proof of residency, petitioner submitted an owner affidavit from her aunt and an envelope from a State political party addressed to her at the in-district address. Respondent admitted the students to its schools based upon this information.
Thereafter, respondent received information suggesting that petitioner and the students resided at a location outside of respondent’s district (the “out-of-district address”). Respondent initiated an investigation into the students’ residency, which included surveillance evidence.
Respondent conducted surveillance at the in-district address and out-of-district address on the mornings of October 15, 16, 26, and 31, 2018, as well as November 1, 2018. This surveillance evidence depicted petitioner leaving the out-of-district address on each of the five days with the students in the morning.
In a December 4, 2018 letter sent to petitioner at the in-district address, respondent’s superintendent informed petitioner that it had reason to believe that the students were not district residents. The superintendent gave petitioner until December 19, 2018 to submit “any and all information” concerning the students’ residency. This letter was returned to respondent by the United States Postal Service, bearing the notations “return to sender,” “unclaimed,” and “unable to forward.”
According to the record, petitioner contacted the district office by telephone and the secretary to the superintendent by email on December 10, 2018. The record contains an email response by the secretary to the superintendent, dated December 10, 2018, in which she indicated that she would “forward th[e] email” to the superintendent, who would call petitioner after a meeting scheduled for that afternoon.
Respondent thereafter conducted an additional eight days of surveillance on December 13, 14, and 19, 2018; January 23, 25, 30, and 31, 2019; and February 1, 2019. While not entirely clear from a report created by the investigator, it appears that petitioner and/or the students were observed at the out-of-district address on four of the eight occasions and at the in-district address on two occasions; two dates of surveillance were inconclusive.
By letter dated February 1, 2019, respondent’s acting superintendent determined, on behalf of respondent, that the students were not residents of respondent’s district. The acting superintendent indicated that the student would be excluded from school effective February 25, 2019.
After issuing the February 1, 2019 exclusion letter, respondent conducted additional surveillance of the in-district and out-of-district addresses on February 11, 13, and 14, 2019. On each of the three dates, the students returned to the out-of-district address in the afternoon or evening. Two investigators also conducted surveillance in the morning on February 13 and 14, 2019. On both mornings, the students were observed leaving from the out-of-district address.
This appeal ensued. Petitioner’s request for interim relief was denied on February 27, 2019.
Petitioner contends that she and the students reside at the in-district address. As proof, she submits documentary evidence bearing her name and the in-district address. Petitioner requests a determination that she is a district resident and that the students are entitled to attend respondent’s schools.
Respondent contends that its determination was rational and that the evidence in the record shows that petitioner resides at the out-of-district address.
I must first address two preliminary matters. First, petitioner argues in her reply that respondent failed to provide her with notice of the basis of its determination, as required by 8 NYCRR §100.2(y). Section 100.2(y) provides that the written notice provided to parents must state, among other things, “the specific basis for the determination that the child is not a resident of the school district, including but not limited to a description of the documentary or other evidence upon which such determination is based” (8 NYCRR §100.2[y][ii]). Here, respondent’s December 4, 2018 and February 1, 2019 letters did not set forth the basis for its determination of nonresidency, as required by 8 NYCRR §100.2(y) (see Appeal of Rivera, 57 Ed Dept Rep, Decision No. 17,221; Appeal of Leslie, 38 id. 194, Decision No. 14,013; Appeal of Daniels, 37 id. 557, Decision No. 13,926). Accordingly, I admonish respondent to fully comply with the procedures established in 8 NYCRR §100.2(y) in the future. However, because the matter is now before me and petitioner has had ample opportunity to present evidence in support of her claim, I will address the merits (see e.g. Appeal of D.P., 54 Ed Dept Rep, Decision No. 16,673; Appeal of Butler and Dunham, 50 id., Decision No. 16,103).
Second, petitioner requests that I accept her additional affidavit from her aunt attesting to petitioner’s residency at the in-district address. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). In my discretion, and in light of respondent’s noncompliance with 8 NYCRR §100.2(y) described above, I have accepted this affidavit and considered it in reaching my determination.
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).
While the evidence in the record is not overwhelming, I nevertheless find that petitioner has failed to meet her burden of proving that she resides at the in-district address. Petitioner’s evidence consists of the following documents, which bear the in-district address: (1) an individualized education plan for one of her children; (2) a heating bill; (3) three letters from a plumbing company; (4) a notice of decision on petitioner’s application for supplemental nutrition assistance; (5) four documents from the Social Security administration; (6) a nonpublic high school admission letter addressed to one of the students; and (7) a copy of petitioner’s 2018 W-2 form. While this documentary evidence bearing petitioner’s name and the in-district address is entitled to some weight, it is not dispositive where (as here) contrary surveillance evidence exists, particularly in light of the fact that the in-district residence appears to belong to petitioner’s aunt (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).
Petitioner also submits an affidavit from her aunt, the owner of the in-district address, who indicates that she has “granted permission to [petitioner] to reside” at the in-district address, and that petitioner “and her children have resided continuously” at the in-district address “since on or about August, 2018.” I do not find this affidavit to be persuasive evidence of petitioner’s physical presence in the district. According to the record, the aunt resides out of state, and there is no information suggesting that she has any firsthand knowledge concerning the extent to which petitioner or the students are physically present at the in-district address. Thus, while the aunt’s affidavit demonstrates petitioner’s ability to reside at the in-district address, it does not prove that petitioner or her children actually reside there.
Respondent relies primarily on its surveillance evidence, which depicted petitioner and/or the students at the out-of-district address on the majority of those days in which surveillance was conducted. This evidence, summarized above, suggests that petitioner and the students primarily reside at the out-of-district address, which is owned by petitioner’s aunt.
On appeal, petitioner presents explanations for her presence at the out-of-district address for surveillance conducted in December 2018 and January 2019 in the petition. Specifically, petitioner alleges that, in December 2018, “the boiler broke” at the in-district address thus “leaving the home without heat.” In support of this contention, petitioner submits a credit card statement which identifies a “[c]ard [p]urchase” transaction on “01/06” payable to a heating company. Petitioner further asserts that “[a] pipe froze and burst causing a flood” at the in-district address “on or about January 23, 2018.” In support of this contention, petitioner submits a work order for repairs at the in-district address dated January 26, 2019 as well as a form dated January 23, 2019 authorizing direct payment to a plumbing company. Respondent does not respond to these assertions on appeal. Therefore, on this record, I find that petitioner has presented a reasonable explanation for her and/or the student’s presence at the out-of-district address from approximately December 2018 through January 26, 2019.
However, petitioner has not met her burden of explaining her and the students’ absence from the in-district address in late January and early February 2019. In this respect, petitioner asserts as follows:
- On January 30, 2019, petitioner alleges that her minivan was at the out-of-district address “in response to information that the Yonkers warrant squad was at the [out-of-district] address looking for [petitioner’s] children’s father.”
- On January 31, 2019, petitioner asserts that the students remained at the out-of-district address on January 31, 2019 “as they were suffering from stomach flu.”
- On February 1, 2019, petitioner asserts that she was at the out-of-district address “to help [her] older daughter move furniture”; additionally, at the out-of-district address, one of petitioner’s children (who apparently resides at the out-of-district address) could supervise a younger child “who [had been] suspended from [r]espondent’s school district at that time.”
- During the week of February 11, 2019, petitioner alleges that she stayed at the out-of-district address because the in-district address “had no heat.”
However, unlike her explanations regarding the boiler and water pipe above, petitioner has produced no proof in support of these assertions. Therefore, I cannot find that petitioner has met her burden of proving a reasonable explanation for her and/or the students’ presence at the out-of-district address on these dates. Moreover – and significantly – petitioner has provided no explanation whatsoever for her and/or the students’ presence at the in-district address on any of the five days of surveillance in October and November 2018. Therefore, on this record, I find that respondent’s surveillance evidence sufficiently demonstrates that petitioner resides at the out-of-district address.
Additionally, respondent asserts in its answer that it has received reports from community members who reside in the neighborhood of the in-district address that petitioner and her children do not, in fact, reside at the in-district address. In an affidavit, respondent’s school business administrator further asserts that was “advised” that the students are dropped off at the in-district address in the morning “and then they walk around the block to the bus stop.” The school business administrator further indicates that “[i]n the afternoon[,] when the children are dropped off[,] they run around and are unsupervised until Petitioner or someone else picked them up.” I find that this evidence, while not dispositive in and of itself, further supports respondent’s determination.
Petitioner also objects to generalized observations contained in the surveillance report. I agree with petitioner that the generalized descriptions contained in the surveillance report – for example, “what is believed to be a black woman with a baseball hat” and “several black males” – are ambiguous (see Appeal of J.M., 42 Ed Dept Rep 80, Decision No. 14,783). Were petitioner to deny that she and the students were, in fact, depicted in the surveillance evidence, I would find respondent’s surveillance evidence to be of diminished probative value (see Appeal of McClain, 46 Ed Dept Rep 126, Decision No. 15,462). However, petitioner does not deny that she and the students are the individuals identified in the surveillance report. Thus, while I agree that the surveillance evidence is ambiguous in certain respects, respondent asserts that the individuals identified during the surveillance were petitioner and the students and petitioner does not claim otherwise on appeal. Thus, any deficiencies in respondent’s surveillance evidence cannot negate that fact that she and/or the students were, in fact, observed at the out-of-district address on numerous occasions.
Finally, to the extent petitioner argues that she is a district resident who is temporarily absent from the district and should be permitted to maintain her residency status during such absence, this doctrine does not apply under the facts of this case as there is no indication on the record before me that petitioner initially established residency in respondent’s district (see e.g. Appeal of S.T.V., 57 Ed Dept Rep, Decision No. 17,371; Appeal of Zhang and Xue, 54 Ed Dept Rep, Decision No. 16,733; Appeal of Lin, 48 id. 166, Decision No. 15,827).
I have considered petitioner’s remaining arguments and find them to be without merit.
Although the appeal must be dismissed for the reasons described above, I note that petitioner retains the right to reapply for admission to respondent’s schools on the students’ behalf at any time, should circumstances change, and to present any information for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 While such a belated assertion would ordinarily not be allowed in a reply, as indicated above, respondent did not disclose the basis for its nonresidency determination in its February 1, 2019 exclusion letter. Thus, it appears that petitioner first learned of the district’s surveillance evidence upon receipt of the district’s answer. Under these circumstances, particularly in light of respondent’s noncompliance with 8 NYCRR §100.2(y) described above, I will consider petitioner’s response to respondent’s surveillance evidence in the reply (see Appeal of Leach, Jr., 58 Ed Dept Rep, Decision No. 17,653).
 Therefore, this case is distinguishable from Appeal of a Student with a Disability (57 Ed Dept Rep, Decision No. 17,199), cited by petitioner, in which a parent admitted to her absence from the district on all relevant dates of surveillance and sufficiently demonstrated that that she was engaged in renovation of the out-of-district residence (which, under the facts of that appeal, sufficiently explained her presence there).
 While the statements offered by respondent are hearsay, hearsay is admissible in an administrative proceeding such as an appeal pursuant to Education Law §310 (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of Watson, Wyche and Brazley, 56 Ed Dept Rep, Decision No. 17,082; Appeal of Galperin, 51 id., Decision No. 16,297, judgment granted dismissing petition, Sup Ct., Albany Co., August 10, 2012). Any objection to hearsay evidence goes to its relative unreliability and, thus, its weight (Appeal of Tashoff, 50 Ed Dept Rep, Decision No. 16,140).