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Decision No. 13,795

Appeal of ROSE DIGILIO, on behalf of her children, DAWN AQUILONE and ROSEMARIE AQUILONE, from action of the Sewanhaka Central High School District regarding residency.

Decision No. 13,795

(July 24, 1997)

Long Island Advocacy Center, attorneys for petitioner, Sherrie Levine, Esq., of counsel

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the determination of the Sewanhaka Central High School District that her children are not district residents entitled to attend its schools tuition-free. The appeal must be dismissed.

From 1990 to 1996, Dawn and Rosemarie Aquilone, ages 16 and 14, resided at 140 Hoffman Street in respondent school district with their mother (petitioner) and her husband. On March 1, 1996, petitioner notified respondent that they would be moving to the Valley Stream Central High School District (VSCHSD), and later that month petitioner, her husband, and her aunt purchased property at 67 N. Franklin Avenue, Valley Steam, within VSCHSD. Petitioner claims that due to marital difficulties she never moved to Valley Stream. She contends that she, Dawn and Rosemarie moved in with her sister at 955 Hancock Avenue, within respondent school district, and that her husband, another daughter and a granddaughter moved into the Valley Stream property.

Respondent claims that it unsuccessfully attempted to verify petitioner's new address on Hancock Avenue and to provide her with registration forms. By letter dated August 8, 1996, respondent notified petitioner that her children would be excluded effective August 27, 1996, the basis for which was "Actual residence elsewhere" and "Inadequate documentation (Registration Packet)." On September 3, 1996, petitioner requested an administrative review of the residency determination and also submitted new registration forms indicating that she, her children, and her husband all lived at 955 Hancock Avenue. An administrative review was conducted on September 10, 1996. Petitioner and a friend, Gerard Muratore, testified in her behalf. By letter dated September 13, 1996, respondent's designee notified petitioner that Dawn and Rosemarie were not entitled to attend district schools on the basis of "Parental residence outside of the district." This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on September 27, 1996.

Petitioner insists that she is a resident of respondent's school district and provided the following evidence in support of her contention: a letter from her employer, a checking account withdrawal ticket dated September 7, 1996 with the Hancock Avenue address hand-written on it, and copies of four envelopes from respondent addressed to her at 955 Hancock Avenue. Petitioner also submitted a letter from the Nassau County Probation Department indicating that petitioner had notified them on April 18, 1996 that she, Dawn, and Rosemarie had moved to her sister's home at 955 Hancock Avenue due to marital problems and would be there indefinitely, although petitioner did not provide this letter to respondent during the residency proceeding.

Respondent contends that its determination was supported by the record and should be upheld because it is not arbitrary, capricious, or unreasonable. It further requests that if the Commissioner should find that petitioner's additional evidence merits consideration, that the matter be remanded to the district for reconsideration.

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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446). For the purposes of Education Law '3202(1), "residence" means "domicile" which is established by one's physical presence and the intention to remain there permanently (Appeal of Doyle-Speicher-Maldonado, 35 Ed Dept Rep 110; Appeal of Cupid, 34 id. 609).

Based on its investigation, respondent concluded that petitioner and her children were not physically present at their alleged residence. Specifically, respondent's attendance teacher performed surveillance at the Hancock Avenue property from 6 to 8 a.m. on two occasions -- neither child was seen exiting the property, yet both were in school by 8 a.m. The attendance teacher also visited the residence on five occasions between July 25 and August 2, 1996 and found no one home. Petitioner testified that she was on vacation at that time.

Respondent contends that correspondence mailed to petitioner at 140 Hoffman Street was returned indicating 67 N. Franklin Avenue as the forwarding address. Petitioner testified that the mail had been returned with the Valley Stream forwarding address because her husband had mistakenly filled out a change of address card for the entire family.

Respondent also performed surveillance at the Valley Stream address on 13 days between June 18 and July 10, 1996. The report indicates that a grey customized van was parked at the residence on 12 of those days and on one occasion the investigator observed petitioner exiting the Valley Stream address and driving off in the van in question. The van is registered to petitioner's husband, but was identified by the attendance teacher as the one which petitioner usually drives. Petitioner testified that she does not drive because her license was suspended and that since her separation, she no longer has access to the van in question.

Also, respondent's investigator observed petitioner at the Valley Stream address on the mornings of September 9 and September 10, 1996 (the date of the administrative review). On September 10, 1996, respondent conducted surveillance at both the Hancock Avenue and N. Franklin Avenue addresses commencing at 6 a.m. Shortly after 8 a.m. Mr. Muratore picked petitioner up at the N. Franklin Avenue address and drove her directly to the hearing. During the testimony, Mr. Muratore, who drives petitioner to work, indicated that N. Franklin Avenue is where he usually picks her up.

Respondent found the testimony of petitioner and Mr. Muratore inconsistent, contradictory and lacking in credibility. With respect to events on the morning of the hearing, petitioner and Mr. Muratore testified to various scenarios -- that Mr. Muratore picked up petitioner at Hancock Avenue and drove directly to the hearing; that he picked her up, drove her to N. Franklin Avenue, and about thirty minutes later drove her to the hearing; and that petitioner spent the night at her mother's, took a taxi to N. Franklin, where Mr. Muratore picked her up and drove her to the hearing. Petitioner also claimed that her husband and her aunt owned the N. Franklin Avenue property until respondent produced the deed which also bore petitioner's name.

The evidence offered by respondent that petitioner is not a district resident is not overwhelming. Basically, respondent failed to find petitioner at the Hancock address on five dates and observed her at the N. Franklin address on three occasions. However, petitioner has offered inconclusive proof that she and her children reside within the district. At the administrative review, six months after her move, she provided envelopes from respondent indicating that address, a withdrawal ticket with the address hand-written on it and a statement from her employer. In addition to the paucity of petitioner's documentary evidence, respondent found that the testimony of petitioner and Mr. Muratore lacked credibility. With respect to findings of fact in matters involving credibility of witnesses, I will not substitute my judgment for that of the hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of Hamet, 36 Ed Dept Rep 174; Appeal of McCreery, 34 id. 426; Appeal of the Board of Educ., Greater Johnstown City School District, 30 id. 89). Here respondent's judgment is supported by the inconsistent statements of petitioner and her witness.

In sum, the evidence before me is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioner and her children are not residents of the district. The combination of the results of respondent's surveillance, petitioner's lack of documentation of her address, and respondent's conclusions about the credibility of the testimonial evidence on petitioner's behalf sufficiently supports respondent's determination. Where evidence is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioners and their children are not residents of the district, the determination will not be set aside (Appeal of Steinberg, 36 Ed Dept Rep 65). Furthermore, I would not have found differently if petitioner had provided respondent with the additional piece of documentary evidence during her residency proceedings. Petitioner's situation as of April 1996 is not dispositive of her residence during the 1996-97 school year. Therefore, it is not necessary to remand the case based on the introduction of new evidence. Accordingly, respondent's determination will not be set aside and the appeal is dismissed.

Of course, petitioner retains the right to reapply to the district for admission on her children's behalf at any time (Appeal of Blagrove, 32 Ed Dept Rep 629; Appeal of Colas, 32 id. 128).