Appeal of R.G., on behalf of her daughter K.B., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,884

(July 21, 2020)

Ingerman Smith LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter, K.B. (“the student”), is not a district resident.  The appeal must be dismissed.

On September 4, 2012, petitioner registered the student in respondent’s schools.  As relevant here, petitioner stated that she and the student resided at an address within respondent’s district (the “in-district address”) along with several other family members, including the student’s grandmother (“grandmother”).  Petitioner also submitted documents including a custody order granting petitioner and the student’s father joint legal custody and petitioner sole physical custody of the student (the “custody order”).[1]  Based upon these materials, respondent enrolled the student in its schools as a district resident.

By email dated October 2, 2019, petitioner notified a dean of students (“dean”) and a guidance counselor (“guidance counselor”) at respondent’s high school that she had accepted a job in Maryland and rented a two-bedroom townhouse there.  Petitioner further indicated that the student would continue to live with the grandmother at the in-district address for “the next [three to five] weeks.”  Respondent permitted the student to continue to attend its schools.

By email dated November 26, 2019, petitioner informed the guidance counselor that she planned to buy a house within the district and “commute back and forth” between the district and Maryland because the student’s father did not consent to the student moving to Maryland and the student wished to graduate from respondent’s high school.  Petitioner indicated that she was currently supporting the student by providing the student’s grandmother with several hundred dollars for rent, groceries, cable, phone, electricity, water and gas.  Petitioner also indicated that she provided the student with spending money.

By letter dated December 4, 2019, respondent’s director of pupil services (“director”) notified petitioner that the student would be excluded from respondent’s schools effective December 20, 2019 as a non-resident.  The director scheduled an in-person meeting with petitioner for December 11, 2019 to discuss the student’s residency status.

On December 11, 2019, the residency meeting was held via telephone conference.  The director, respondent’s registrar and petitioner attended, with petitioner calling in from Maryland.  According to the director, petitioner “reiterated that she had moved to Maryland” and was unable to take the student with her because of the custody order.  The director states that petitioner rejected her suggestion that petitioner transfer custody of the student to the grandmother or permit the student to reside with the student’s father.[2]

By letter dated December 11, 2019, the director notified petitioner that, because she was unable to substantiate her residency within the district, the student would be excluded from district schools effective December 20, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 13, 2020.

Petitioner maintains that the student resides with her and the grandmother at the in-district address.  Petitioner further asserts that she and the student have resided at the in-district address since January 2011 and that she has not surrendered parental control over the student.  Petitioner concedes, however, that she “travel[s]” to Maryland “for work” and that she pays the grandmother for “rent/contribution” and various bills.  For relief, petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.  In the alternative, petitioner indicates that she is willing to pay “an amount” of money to permit the student to attend respondent’s high school until her graduation in June 2021.

Respondent argues that the petition must be dismissed for lack of service, for failure to include the notice required by 8 NYCRR §275.11, and for lack of verification.  Respondent also argues that the petition must be dismissed on the merits because, among other reasons, petitioner has admitted that she is not a district resident.

The petition must be dismissed for lack of service, lack of notice and lack of verification.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11(a); see e.g. Appeal of Gaynor Sr., 51 Ed Dept Rep, Decision No. 16,293; Appeal of Hauk, 44 id. 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570; Appeal of Heller, 38 id. 335, Decision No. 14,048).  A petition that does not contain the language required by §275.11 is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; Appeal of Hauk, 44 id. 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570).

Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Dow, et al., 59 Ed Dept Rep, Decision No. 17,762; Appeal of Nappi, 57 id., Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).

The record reflects that petitioner initially submitted an unidentified filing dated December 21, 2019, which lacked an affidavit of service, a notice of petition required by 8 NYCRR §275.11(a) or an affidavit of verification.  My Office of Counsel rejected the filing for these reasons and returned it to petitioner. Petitioner subsequently submitted the instant petition, dated January 4, 2020.  As with petitioner’s December 21, 2019 filing, the January 4 petition fails to include an affidavit of service, a notice of petition, or an affidavit of verification.  Moreover, petitioner did not submit a reply to respond to or refute respondent’s affirmative defenses.[3]  Because any one of these procedural deficiencies would warrant dismissal of the petition, I am constrained to dismiss the petition for lack of service, failure to include the required notice, and for lack of verification (Appeal of J.W. and K.W., 59 Ed Dept Rep, Decision No. 17,815; Appeal of M.C., 59 id., Decision No. 17,788; see Appeal of Dow, et al., 59 id., Decision No. 17,762; Appeal of A.B., 58 id., Decision No. 17,527).

Although the appeal must be dismissed on procedural grounds, I note that petitioner retains the right to reapply for admission to the district on the student’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

In light of this disposition, I need not address the parties’ remaining arguments.

THE APPEAL IS DISMISSED.

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