Appeal of JESSICA KILPATRICK, on behalf of her daughter JULIET BENCOSME, from action of the Board of Education of the Highland Falls-Fort Montgomery Central School District regarding residency.

Decision No. 17,750

(September 4, 2019)

Donald S. Mazin, Esq., attorney for petitioner

Shaw, Perelson, May & Lambert LLP, attorneys for respondent, Margo L. May, Esq., of counsel

BERLIN., Acting Commissioner.--Petitioner appeals the decision of the Board of Education of the Highland Falls-Fort Montgomery Central School District (“respondent” or “the board”) that her daughter, Juliet Bencosme (“the student”), is not a district resident.  The appeal must be dismissed.

According to an affidavit submitted by respondent’s superintendent, who is also the district’s residency designee, in April 2018, petitioner attempted to enroll the student in the district’s prekindergarten program but “did not produce the appropriate documentation to enable such enrollment.”  The superintendent further asserts that “[p]etitioner was ultimately able to produce the necessary documents to support the enrollment of her daughter in the District.”[1]  Accordingly, the student was enrolled and, in September 2018, began attending respondent’s prekindergarten program.

The superintendent states in his affidavit that, following the student’s enrollment in respondent’s prekindergarten program, “one or more members of the community continued to advise [him] that Petitioner and her daughter do not, in fact, reside at [the in-district address].”  Accordingly, on or about August 13, 2018, respondent engaged a private investigative service to determine whether petitioner and the student are district residents.  Investigators conducted surveillance at the in-district and out-of-district residences on 13 separate occasions between August 29, 2018 and October 3, 2018 at various times of day.  A summary investigative report dated October 5, 2018 concluded that petitioner and the student resided at the out-of-district address.

By letter dated November 6, 2018, the superintendent informed petitioner that respondent had “reason to believe” that the student did not reside within respondent’s district and that, accordingly, she was not entitled to attend its schools.  The superintendent’s letter informed petitioner that she was required to submit to the superintendent any information supporting the student’s right to attend respondent’s schools.  The letter also offered petitioner the opportunity to attend a meeting at which she could present evidence that the student resided within respondent’s district.  Petitioner did not meet with the superintendent or present any additional evidence in support of her claim of residency within the district.

By letter dated November 28, 2018, the superintendent informed petitioner that he had made a final determination that the student was not a district resident and that, accordingly, she would be excluded from respondent’s schools effective January 2, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 3, 2019; petitioner’s request for reconsideration of her request for interim relief was denied on January 4, 2019.

Petitioner asserts that she and the student reside together within the district. She further asserts that the student’s father, who resides at the out-of-district address, has “liberal visitation rights” and that, “[f]rom time to time Juliet sleeps over at her father’s apartment during the week or weekends, as we agreed.”  Additionally, petitioner claims that she was involved in a serious car accident and that “for a period of time [she] could not care for [the student] and [the student] stayed with her father until [she] recovered.”

Petitioner contends that the proof of residence that served as the basis upon which the student was initially enrolled should suffice to maintain the student’s enrollment, and that “unspecified allegations and unexplained photographs are not evidence” of her place of residence.  Petitioner also claims that, because the superintendent did not respond to a request for information about the types of documentation that could serve as proof of residency, she was “denied the opportunity to provide additional proof ....”

Respondent asserts that the appeal must be dismissed because petitioner and her daughter reside outside respondent’s district and because petitioner has failed to rebut its surveillance evidence, which shows that the student resides outside of the district.

I must first address two procedural matters.  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 Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).  Respondent’s answer was served by mail on January 16, 2019.  Petitioner’s reply was therefore due by January 30, 2019.  Petitioner, who did not request an extension of time in which to submit the reply,  served the reply on February 4, 2019.  Therefore, petitioner’s reply is untimely, and I have not considered it.

I must also reject petitioner’s argument that respondent failed to provide her with a sufficient opportunity to address the school district’s residency concerns before it made its determination.  Commissioner’s regulation §100.2(y)(6) provides that:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child’s parent ... the opportunity to submit information concerning the child’s right to attend school in the district.

The record reflects that petitioner was afforded an opportunity to submit information to respondent prior to its residency determination in accordance with 8 NYCRR §100.2(y).  The superintendent’s November 6, 2018 letter stated, “[i]f you prefer to meet with me to present such information, please call to schedule a meeting.”  Further, in his affidavit, the superintendent asserts:

There were communications between the District’s attorney and Petitioner’s attorney regarding whether or not additional information would be submitted.  While Petitioner’s attorney requested information regarding the basis of my determination, at that time, Petitioner still had the option of submitting additional information or meeting with me.  Petitioner, through her attorney, decided not to submit additional information or meet with me....

Therefore, on this record, I find that respondent offered petitioner an opportunity to submit information prior to its final determination in conformity with 8 NYCRR §100.2(y).

The appeal must also be dismissed on 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).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

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 the record before me, I find that petitioner has failed to meet her burden of proving that she and her daughter reside in respondent’s district.  Petitioner claims that, although she and the student reside together within the district, the student occasionally sleeps at her father’s out-of-district address, as agreed to by the student’s parents.  Additionally, petitioner asserts that she was involved in a serious car accident and “for a period of time [she] could not care for [the student] and [the student] stayed with her father until [she] recovered.”  Initially, I note that petitioner admits that the student stays at the out-of-district address “[f]rom time to time.”  Therefore, the relevant issue is where the student spends the majority of time.

According to a background investigation conducted by respondent’s private investigative firm, the in-district address claimed by petitioner “belongs to [petitioner’s] former mother-in-law...The student and mother reportedly moved into [this] home in April 2018, previously living at the [out-of-district address].”[2]  Respondent conducted surveillance on 13 separate days, at various times during those days, at both the in-district and out-of-district addresses; generally, two investigators were dispatched to conduct the surveillance (i.e., one investigator was deployed to each of the locations in question).  The investigative report indicates that, on all but one of the seven occasions on which early morning surveillance was conducted, petitioner’s car was observed parked outside the out-of-district address at which the student’s father resides.[3]  Further, on all but one of the seven occasions on which early morning surveillance was conducted, petitioner and other individuals were observed driving the student from the out-of-district address to the in-district address and, from there, petitioner’s former father-in-law was observed driving the student to school or the bus stop.[4]  On three of the six occasions on which afternoon surveillance was conducted, petitioner was observed entering the out-of-district residence with the student in the late afternoon/early evening; on at least one of those occasions, petitioner was observed picking up the student at the in-district residence before arriving at the out-of-district residence.

Petitioner was afforded an opportunity to submit information to respondent prior to its residency determination but chose not to submit any such information.  On appeal, petitioner submits no evidence of her physical presence at the in-district address.[5]  Had petitioner submitted with her appeal documentary evidence that she resides at the in-district residence, such evidence would be entitled to some weight.  Such evidence would not, however, have been dispositive where (as here) contrary surveillance evidence exists that is not otherwise refuted or explained by petitioner, and where the in-district residence is owned by petitioner’s former mother-in-law (see e.g., Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644).

To the extent petitioner claims that the student is a district resident who was temporarily absent from respondent’s district, petitioner has provided no evidence that she was involved in a car accident, nor does she provide any details regarding the date of the alleged accident or the duration of her alleged incapacity.  Therefore, I cannot find that this doctrine applies under the facts of this case (compare Appeal of Berliner, 38 Ed Dept Rep 181, Decision No. 14,010).

Therefore, on the record before me, I cannot conclude that respondent’s determination that petitioner and her daughter are not district residents was arbitrary, capricious or unreasonable.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the student’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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