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Decision No. 12,865

Appeal of LINDA WALKER, on behalf of her daughter SHERICE ABSON, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 12,865

(December 29, 1992)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from the determination of respondent Board of Education of the Sewanhaka Central High School District that her daughter Sherice was not a resident of the school district. The appeal must be dismissed.

Petitioner alleges that she and her daughter reside with petitioner's parents in Elmont, within respondent's district. Petitioner claims that they have resided at the Elmont address since petitioner separated from her husband. The husband apparently still occupies the marital residence, which is located in Queens, outside of respondent's district. Petitioner's daughter has attended school in respondent's district since September 1988, and graduated in June 1991.

On January 14, 1991, six months prior to graduation, respondent held a hearing to determine Sherice's residence. The hearing officer subsequently found that the student's physical presence in the Elmont residence was never in question and that there was sufficient evidence that the student lived, and continues to live, at the Elmont residence. The hearing officer concluded that since the student turned eighteen years old on February 15, 1991, and since an eighteen year old is no longer a minor and can live where he or she chooses to live, the student's residence after February 15, 1991 ceased to be an issue and she could continue to attend respondent's high school as a legal resident of respondent's district.

The hearing officer next found that, since petitioner had failed to establish that she resided in respondent's district and had failed to rebut the presumption that her daughter's residence is that of the parent (see Appeal of Popp, 31 Ed Dept Rep 546), petitioner's daughter was not a resident of respondent's district prior to February 15, 1991. This appeal ensued.

Petitioner alleges that she and her daughter reside at the Elmont residence and are residents of respondent's district. Petitioner contends that the hearing officer's decision is capricious and biased.

Respondent denies petitioner's allegations and contends that its residency determination was made after a full due process hearing and is not arbitrary or capricious. Respondent also contends that the appeal is moot since the student has graduated.

With regard to mootness, the Commissioner of Education decides only matters in actual controversy and will not render a decision concerning a controversy which subsequent events have laid to rest (Appeal of Siderius, 31 Ed Dept Rep 288). While petitioner's daughter has graduated, petitioner appeals from respondent's residency determination to the extent it affects her liability to pay respondent tuition. Therefore, I decline to dismiss the appeal as moot.

Nevertheless, the appeal must be dismissed on the merits. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which she seeks relief (8 NYCRR 275.10; Appeal of Singh, 30 Ed Dept Rep 284). A determination by a board of education that a student is not a district resident will not be set aside unless arbitrary, capricious or unreasonable (Matter of Wadas, 21 Ed Dept Rep 577).

The issue before me concerns the residency of petitioner's daughter prior to February 15, 1991, since the hearing officer determined, and respondent does not dispute, that the student was a resident of respondent's district from that date forward. As to the student's residence prior to February 15, 1991, the hearing officer's residency determination was based upon petitioner's failure to rebut the presumption that a child's residence is that of the parent (Appeal of Popp, supra). The hearing officer noted that, while petitioner claims that she has not lived with her husband in the marital residence in Queens for over 2 1/2 years, there has been no movement toward formal separation, divorce or reconciliation. The hearing officer found that petitioner maintained ties to Queens that, for a woman who claims to have resided with her parents in Elmont for over 2 1/2 years, should have been severed by the time of the hearing. The record established that petitioner remains a registered voter in Queens, that there is an unpublished telephone number at the Queens residence in her name, and there is a vehicle which she claims to be her husband's but which is registered in her name at the Queens address, despite the fact that she uses another vehicle. The record also indicates that the Queens residence and the mortgage on the residence are listed in both petitioner's and her husband's names. The hearing officer noted that petitioner receives mail at both the Elmont and Queens address. He gave little weight to the affidavits submitted on behalf of petitioner because they were from relatives and neighbors likely to be biased in her favor.

"Most convincing" to the hearing officer in this case was that in four early morning visits to the Elmont address by a private investigator hired by respondent, petitioner's car was never observed and petitioner was never seen leaving the residence to go to work. Petitioner indicated that she may have been working overtime on those days. The hearing officer requested copies of the overtime records from petitioner, but petitioner did not provide him with such records. There is no indication in the record that such records did not exist or that they were otherwise unavailable to petitioner.

In his decision, the hearing officer indicated that, in reviewing the testimony, he found the surveillance reports persuasive, especially when considered with the other evidence presented at the hearing, including petitioner's voter registration, Queens telephone number, car registration and the absence of proof of separation or of action toward divorce or reconciliation. Upon the record before me, I do not find the hearing officer's evaluation of the evidence to be unreasonable. Respondent presented a primafacie case that petitioner and her daughter were not residents of respondent's district. The burden was then on petitioner to rebut respondent's contention by proving residency in respondent's district. Petitioner failed to meet her burden of proof.