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Decision No. 13,698

Appeal of DIANA WYNTER, on behalf of her daughter, MAKEDA SHAW, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 13,698

(October 31, 1996)

Ashirah S. Naphtali, Esq., attorney for petitioner

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Baldwin Union Free School District ("respondent") that she and her daughter are not residents of the district. The appeal must be sustained.

Makeda Shaw is the daughter of petitioner and Donovan Shaw. In August 1995 petitioner and her husband agreed to permanently separate. Petitioner and her daughter left their home in Rosedale, New York, which is located outside respondent's district, and moved in with petitioner's brother, who resides within respondent's school district. Petitioner subsequently enrolled Makeda in respondent's high school for the 1995-1996 school year. Thereafter, respondent began to doubt whether petitioner and her daughter were residents of its district. After conducting an investigation, which included site surveillances at both the Baldwin and Rosedale addresses, respondent determined that petitioner and her daughter did not reside within the Baldwin Union Free School District, but instead resided within the New York City School District. By letter dated May 28, 1996, respondent's director of pupil services informed petitioner of its determination and of her daughter's exclusion from attendance, effective at the close of school on May 31, 1996. By letter dated June 17, 1996, the director of pupil services indicated that the student would be allowed to complete the 1995-96 school year, but reserved the right to seek tuition from petitioner in the event that she was determined not to be a resident. Petitioner then commenced this appeal. On July 3, 1996, I issued a stay directing respondent to admit the student to its schools pending an ultimate determination of the appeal.

Petitioner alleges that her daughter is entitled to attend respondent's high school without the payment of tuition inasmuch as they permanently reside at her brother's residence within respondent's district. 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 and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220). For purposes of Education Law '3202, a person can have only one legal residence; a residence is not lost until it is abandoned and another is established through action and intent (Appeal of a Student with a Disability, 36 Ed Dept Rep , Decision No. 13674, dated September 3, 1996). Residence for purposes of Education Law '3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Kapell, 36 Ed Dept Rep , Decision No. 13672, dated August 30, 1996).

In support of her allegations of residency in respondent's district, petitioner has submitted an affidavit from the student's father which states that he and petitioner have mutually decided to permanently separate because of "irreconcilable differences" and that he has relinquished custody and control of Makeda to petitioner, who, it is further stated, has sole custody and control of the child, including the right to make decisions pertaining to the child's health, welfare and education. The affidavit also states that the student's father has overnight visitation with her at his Rosedale address on the father's days off from work. Petitioner also submits a New York State Insurance Identification Card, credit statement, June 6, 1996 letter from her employer, and copies of envelopes from a bank and insurance company, all of which state petitioner's address at her brother's Baldwin residence. Petitioner also provides a letter from the telephone company that indicates that it connected phone service to petitioner at the Baldwin address on May 29, 1996. In addition, petitioner provides a statement from her brother which supports her allegation that she has resided at his residence permanently since August 1, 1996.

Respondent engaged a private investigative firm to conduct surveillance of petitioner's whereabouts. During this surveillance petitioner and her daughter were observed leaving the Rosedale address in a car registered in petitioner's name on April 19, 22 and 26, between 7:00 and 7:15 AM, and on May 24 at approximately 7:35 AM, when petitioner was observed to arrive at the Rosedale address in a car registered in her name. None of these dates occurred on the days when the student has visitation with her father. Surveillance of the Baldwin address occurred on April 14 and May 24 between 6:30 and 8:00 AM, during which time neither petitioner, the student nor petitioner's vehicle were observed. Additional investigation disclosed that a telephone directory, certain credit bureau records and automobile registration all list petitioner's address at the Rosedale residence. In addition, respondent alleges that when the student's social studies teacher attempted to contact petitioner through the phone number for the Baldwin address, she was told by the wife of petitioner's brother that petitioner and her daughter did not live at that address. Respondent further alleges that on the following day, when the teacher confronted the student with this information, the student indicated that while she lived at the Baldwin address, she sometimes lived with her father. Furthermore, the student was immediately able to provide the teacher with phone number for the Rosedale address, but needed to look up the number for the Baldwin address.

In response, petitioner alleges that at times when Makeda's father is working overtime or is called to work on days he normally would have off, she occasionally spends nights at the Rosedale address in order to babysit petitioner's two other children, who reside with and are under the custody of their father. Petitioner further alleges that at these times it is expeditious to bring Makeda with her so that there is sufficient time to drive her to school the following morning.

Upon my examination of the record as a whole, I find that petitioner and her daughter are residents of respondent's district. Respondent's determination is largely based upon the results of the surveillance. Petitioner's allegations, that she and her daughter occasionally are required to stay overnight and babysit at the Rosedale address when the father is called to work, which respondent does not rebut, would explain petitioner's presence at the Rosedale address while under surveillance. Furthermore, respondent's allegations concerning the incident involving the social studies teacher is contradicted by the sworn statement of petitioner's sister-in-law, which states that petitioner and her daughter have been living with her and her husband (petitioner's brother) since August 1995, and that she merely informed the teacher that petitioner was not in at the time of the call.