Decision No. 13,674

(September 3, 1996)

Joyce B. Berkowitz, Esq., attorney for petitioner

Wayne A. Vander Byl, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals respondent's determination that her son is not a resident of the Greece Central School District ("district"). The appeal must be dismissed.

In the fall of 1993, petitioner referred her son for preschool special education services. At that time, petitioner represented to the Board of Cooperative Educational Services ("BOCES") and respondent that her residence was 1262 Beach Avenue, Greece, within the district, but that she was temporarily living at 270 Latta Road, Rochester, outside the district. Based on this representation, respondent treated petitioner's son as a resident of the district and provided preschool special education services from January 1994 until February 1996.

During this time, respondent sent all correspondence to 270 Latta Road and reached petitioner by telephone there. In addition, BOCES provided all its home services at 270 Latta Road and petitioner's son received transportation to and from that address.

In the fall of 1995, the chairman of the district's Committee on Preschool Special Education questioned whether petitioner's residence at 270 Latta Road was truly temporary and he referred the issue to the district's director of student services. In January 1996, the district hired a private investigation agency to conduct an investigation into petitioner's residency. In the course of this investigation, an investigator observed petitioner's car at 270 Latta Road on four separate occasions but did not observe petitioner's car at 1262 Beach Avenue. In addition, an investigator made a site visit to 1262 Beach Avenue. In his sworn report, the investigator stated that he looked through the windows at 1262 Beach Avenue and found all rooms to be empty. In addition, the investigator noted that there were old newspapers and fliers all over the door step. The investigator also stated that interviews of neighbors at Beach Avenue and Latta Road indicated that petitioner was seen frequently at the Latta Road address.

By letter dated February 1, 1996, respondent's director of student services notified petitioner that the investigation and various documentation indicated that petitioner resided at 270 Latta Road, outside the district. In response, petitioner sent a letter in which she maintained that her residence at 270 Latta Road was temporary. Petitioner also submitted a copy of her driver's license, a furnace repair bill, tax information for 1262 Beach Avenue, and a letter from her attorney. By letter dated February 16, 1996, respondent's director of student services advised petitioner that she and her son were not residents of the district. This appeal ensued.

Petitioner contends that 1262 Beach Avenue is her permanent residence because it was her marital residence from November 1990 to November 1993. Petitioner maintains that she was forced to move out in January 1992 and temporarily reside with her mother at 270 Latta Road because her husband threatened her and her son. Petitioner further maintains that her ex-husband, who she evicted in February 1994, rendered the house uninhabitable. Petitioner alleges that she has slowly been making repairs to the premises and intends to return once the repairs are complete. Petitioner states that her mother owns 1262 Beach Avenue and permits her to live there. Petitioner further contends that she visits the Beach Avenue property daily and keeps her personal belongings there.

Respondent contends that petitioner resides with her mother at 270 Latta Road. Respondent further contends that petitioner has submitted insufficient evidence to establish her residence at 1262 Beach Avenue.

For purposes of Education Law '3202, a person can have only one legal residence (Appeal of Britton, 33 Ed Dept Rep 198; Appeal of Wadas, 21 id. 577). A residence is not lost, moreover, until it is abandoned and another is established through action and intent (Appeal of Britton, supra; Appeal of Edward K., 32 Ed Dept Rep 112; Appeal of Richards, 25 id. 38). Nor does a person's temporary absence from one's district of residence necessarily constitute establishment of a residence in the district where temporarily located or abandonment of one's permanent residence. Accordingly, students whose families lose their permanent home due to circumstances beyond their control, who are forced to make temporary arrangements outside their district of residence and whose actions reflect an intent to return to the district, do not lose their right to attend school in the district where they previously lived (Appeal of Mountain, 35 Ed Dept Rep 382). To determine one's intent, evidence regarding the family's continuing ties to the community and their efforts to return are relevant (Appeal of Kenneth R., 30 Ed Dept Rep 297; Appeal of Tynan, 28 id. 4; Appeal of Woodward, 27 id. 442).

Based on the record before me, I find the weight of the evidence supports respondent's determination that petitioner and her son are not residents of the district. The record indicates that petitioner resided at 1262 Beach Avenue from November 1990 to January 1992, a period of one year and three months. For the last four years, however, petitioner has lived at her mother's apartment at 270 Latta Road, outside the district. During this time, petitioner has used the address of 270 Latta Road as her mailing address, has used the telephone number at 270 Latta Road, and has had various meetings at that address. The record also indicates that petitioner's mother lives in Nevada six months out of the year. All of these factors suggest that petitioner has established her residence at 270 Latta Road.

Petitioner attempts to argue that her absence from 1262 Beach Avenue is only temporary. Although petitioner maintains that she was forced to leave the residence in 1992 because of threats by her ex-husband, she offers insufficient evidence that she is actively seeking to return there. The record indicates that petitioner's mother owns 1262 Beach Avenue. Although petitioner alleges that her mother permits her to live there, petitioner has no lease or other possessive or ownership interest in the premises. Furthermore, the only evidence petitioner submits as proof of her efforts to return is a $150.00 bill for furnace repairs. However, the repair to the furnace could be explained by the fact that petitioner's mother owns the premises and petitioner watches over her mother's property while she is in Nevada. Petitioner submits no other proof that she has paid for repairs to the premises which is allegedly in a state of disrepair. Specifically, petitioner submits no proof regarding a security system which she allegedly is

installing.

In addition, although petitioner maintains that she keeps her belongings at Beach Avenue this is contradicted by the district's investigation. The investigator's sworn report indicates that the house is vacant. When petitioner questioned how the investigator could have seen through the curtains, the district's director of student services confirmed that the investigator looked through windows on three sides of the house and did not observe any furnishings. Furthermore the investigator's report indicates that there were old newspapers and fliers all over the door step which contradicts petitioner's assertion that she visits the premises on a daily basis. Although petitioner submits copies of photographs with her reply, in an effort to show that 1262 Beach Avenue is furnished, they are not persuasive. Additionally, petitioner's statement that she keeps all of her personal belongings at Beach Avenue, including clothing, bedding and toys, is questionable in light of the fact that she has admittedly slept at her mother's residence for over four years.

Moreover, petitioner submits no documentary evidence that she resides at 1262 Beach Avenue. Although it is not part of the record, it appears that petitioner submitted a copy of her driver's license to the district listing the address of 1262 Beach Avenue. However, it also appears that petitioner's license was issued two days after respondent's director of student services requested it. Petitioner alleges that she is unemployed and, therefore, has no other documentation to prove that she resides at 1262 Beach Avenue. The lack of any documentation, however, supports the district's determination of non-residency.

Furthermore, although petitioner submits some evidence that she visits 1262 Beach Avenue, she fails to submit any evidence of continuing ties to the community. Petitioner's failure to submit adequate proof of continuing contacts within the district further suggests that she is not a resident (see, Appeal of Kenneth R., supra; Appeal of Curtin, 27 Ed Dept Rep 446).

In sum, I am unable to conclude on the record before me that petitioner is temporarily housed outside the district and is actively taking steps to return there. Accordingly, respondent's determination will not be set aside.

THE APPEAL IS DISMISSED.

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