Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Babylon Union Free School District regarding residency.

Decision No. 17,905

(August 7, 2020)

Guercio & Guercio, LLP, attorneys for respondent, Bryan Georgiady, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner appeals a decision of the Board of Education of the Babylon Union Free Central School District (“respondent”) that her child (“the student”) is not a district resident.  The appeal must be dismissed.

Prior to the events giving rise to this appeal, the student resided with petitioner at a residence within respondent’s district (the “in-district address”) and attended respondent’s schools as a resident student.  In September 2019, respondent’s superintendent initiated a residency investigation based on the district’s suspicion that the student was residing at a location outside of respondent’s district (the “out-of-district address”).[1]  During the investigation, a private investigator surveilled the in-district and out-of-district addresses on six weekdays in September 2019, which revealed the following:

• On September 4, the investigator conducted surveillance in the evening and observed petitioner’s vehicle parked in the driveway of the out-of-district address.
• On September 5, the investigator arrived at the out-of-district address in the early morning and observed petitioner’s vehicle parked in the driveway.  The investigator observed the student exit the out-of-district address and depart in a waiting vehicle at approximately 7:20 a.m.  The investigator followed the vehicle to the in-district address, where the student exited the vehicle and briefly entered the residence before boarding a school bus at approximately 7:50 a.m.
• On September 6, the investigator observed petitioner and the student depart the out-of-district address in petitioner’s vehicle at approximately 7:20 a.m.  The investigator followed petitioner’s vehicle to the in-district address, where the student exited the vehicle and boarded a school bus.
• On September 9, the investigator observed petitioner’s vehicle parked in the driveway of the out-of-district address during the morning hours; however, he did not observe petitioner or the student.  The investigator subsequently confirmed that the student was absent from school on September 9.
• On September 10, the investigator observed petitioner and the student at the out-of-district address at approximately 7:13 a.m.  The investigator then went to the in-district address, where he observed the student get dropped off in a vehicle and board a school bus at approximately 7:54 a.m.
• On September 11, the investigator arrived at the out-of-district address in the morning and observed petitioner’s vehicle in the driveway.  At approximately 7:17 a.m., the investigator observed the student exit the residence and depart in a vehicle.  The investigator followed the vehicle to the in-district address, where the student boarded a school bus at approximately 7:50 a.m.

By letter dated September 13, 2019, the superintendent advised petitioner that the district had reason to believe that the student was no longer a district resident.  The superintendent invited petitioner to submit information concerning the student’s right to attend the district’s schools and to attend a residency hearing.  Respondent convened a formal residency hearing on October 2, 2019.  Based on the transcript of this hearing, petitioner acknowledged that she owned the out-of-district address and had been living there for approximately a year.  Petitioner further indicated that she had previously resided with the student at the in-district address but that her brother now owned that property.  Petitioner asserted that the student continued to reside at the in-district address with petitioner’s nephew as well as the nephew’s girlfriend and children.  Petitioner indicated that the student slept at the in-district address every night but visited her at the out-of-district address “about three times a week” to help her with the property, after which she would “drop him back off” at the in-district address.  Notably, petitioner confirmed that she had “full custody” of the student, was his “sole legal guardian,” and had never “delegated any decision-making or supervisory authority” over the student to her nephew or the nephew’s girlfriend.

Thereafter, by letter dated October 2, 2019, the superintendent informed petitioner of her determination that, based on petitioner’s testimony at the hearing and the results of the district’s surveillance, the student was not a district resident and, therefore, would be excluded from the respondent’s schools effective October 11, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 21, 2019.   

Petitioner claims that the student is a district resident because she has surrendered parental control over the student to her nephew.  Petitioner indicates that, although she provides the student with “food and clothing,” her nephew “provides shelter and some other ancillary expenses.”  For relief, petitioner seeks a determination that the student is a resident of respondent’s district entitled to attend respondent’s schools without payment of tuition. 

Respondent argues that its residency determination was not arbitrary or capricious and, therefore, the appeal must be dismissed.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Address” 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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's address 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 [1991]; Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; 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). 

First, I must address the scope of the record on appeal.  In the petition, petitioner asserts that the student is a district resident because she has “surrendered parental control” over the student to her nephew.  During her residency hearing, however, petitioner expressly indicated that she had sole custody of the student and had not surrendered parental control over the student to her nephew.  The sole evidence petitioner submits in support of her claim that the student resides within respondent’s district is “an affidavit of non-resident parent or legal guardian” in which she asserts that the student will be living with her nephew at the in-district address until “June 2022.”  Significantly, however, petitioner executed this affidavit on October 14, 2019 – twelve days after respondent rendered its determination on October 2, 2019, and three days after it excluded the student from its schools on October 11, 2019. 

According to the superintendent’s affidavit, petitioner did not submit her October 14, 2019 affidavit to respondent prior to serving the instant petition, and the petition marked “[t]he first time the [d]istrict was ever made aware of any alleged relinquishment of custody and control” of the student to petitioner’s nephew.  Generally, issues not raised before respondent and presented for its consideration and decision may not be raised for the first time in an appeal to the Commissioner under Education Law §310 (see e.g. Appeal of N.H., 59 Ed Dept Rep, Decision No. 17,732).  Therefore, I decline to consider petitioner’s claim that she has surrendered parental control of the student.  Nor is her October 14, 2019 affidavit properly part of the record on appeal, as petitioner executed this affidavit after respondent rendered its determination in this matter and did not submit it for respondent’s consideration prior to commencement of this appeal (see Appeal of Noble-Silverberg, 38 Ed Dept Rep 213, Decision No. 14,017 [declining to consider “new material which has not yet been considered by the district”]; see generally Appeal of W.T.B. and M.B., 44 id. 152, Decision No. 15,129 [noting that an appeal to the Commissioner under Education Law §310 is appellate in nature]).  In any event, even if I accepted this affidavit, it would be insufficient to constitute a total transfer of custody and control, insofar as the affidavit indicates that the student is residing with the nephew temporarily, until June 2022, and reveals that petitioner provides $200 per week to support the student.

Based on the evidence properly before me on appeal, I find that respondent’s determination that the student was not a district resident was neither arbitrary nor capricious.  During the residency hearing, petitioner conceded that she resided at the out-of-district address and had sole custody of the student.  Although petitioner claimed that the student resided full-time with her nephew at the in-district address, there is no evidence in the record to rebut the presumption that the student’s residence is with petitioner, his custodial parent (see e.g. Appeal of Menzer, 59 Ed Dept Rep, Decision No. 17,768).  In any event, petitioner’s contention is refuted by the district’s surveillance evidence, which consistently depicted the student departing the out-of-district address on school-day mornings and being transported to the in-district address to be picked up by his school bus.  Accordingly, on this record, petitioner has failed to rebut the presumption that the student resides with her at the out-of-district address.

While the appeal must be dismissed, 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.

THE APPEAL IS DISMISSED.

END OF FILE