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Decision No. 14,011

Appeal of VALERIE WILLIAMS, on behalf of PATRICK EUSTACHE, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,011

(September 4, 1998)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that her child is not a resident of the district. The appeal must be dismissed.

Petitioner’s son, Patrick Eustache, has been enrolled in respondent’s schools since September 1994. At the beginning of the 1997-98 school year, questions arose as to whether or not Patrick was residing within respondent's district at 81 Fallon Avenue in Elmont as claimed by petitioner. On October 16, 1997, the district's assistant to the superintendent sent petitioner a letter indicating that Patrick was not a district resident and was therefore not entitled to attend the district's schools. By letter dated October 26, 1997, petitioner’s husband requested an appeal of this determination to respondent's designated administrative review officer.

On November 20, 1997 respondent's designee, Ann-Marie F. Harline, Esq., conducted a residency review hearing. At the hearing petitioner’s husband testified that their house on Fallon Avenue had been damaged by an electrical fire, which created an ongoing carbon dioxide hazard and left the house uninhabitable. Petitioner’s husband further indicated that he could produce documentation of the hazard and the repairs being made to the house. The hearing was adjourned until January 29, 1998 to give petitioner and her husband additional time to produce such documentation.

On March 16, 1998 the administrative review officer issued her final report which reaffirmed the initial determination that Patrick was not a district resident entitled to attend district schools. The review officer concluded that petitioner’s actual residence was 20-33 Elk Drive, Far Rockaway, outside respondent's district. Petitioner commenced this appeal on April 8, 1998 and requested interim relief to allow Patrick to attend respondent's schools pending a determination in this appeal. Petitioner's request for interim relief was granted on April 23, 1998.

Petitioner contends that her family temporarily moved out of the district due to an electrical fire which created an ongoing hazard at their Fallon Avenue residence. Petitioner argues that her husband told respondent that contractors were working on the problem and that the family intended to move back into the house eventually.

Respondent contends that petitioner’s family has made no effort to repair the Fallon Avenue residence. Its investigators were unable to discern any work being done on the house, despite the fact that the family vacated the house months ago. Respondent further contends that while petitioner’s husband promised to supply a statement from LILCO and a chimney company documenting the problems with the house, he never furnished this information to the district. Additionally, petitioner submitted a new registration packet for her son in January 1998, which indicated that she and her son were living at the Far Rockaway address "for at least the next year." Finally, respondent notes that in her petition, petitioner admits that she lives outside the district and requests only that her son be allowed to finish out the 1997-98 school year as he will not be coming back in the fall.

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 Petrie, 37 Ed Dept Rep 200; Appeal of Cortes, 37 id. 114; Appeal of Keenan, 36 id. 6; Appeal of Brutcher, 33 id. 56). A child’s residence is presumed to be that of his parents or legal guardians (Appeal of Kucherovsky, 37 Ed Dept Rep 241; Appeal of Simond, 36 id. 117; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374).

For the purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of a Student with a Disability, 36 Ed Dept Rep 113; Appeal of Britton, 33 id. 198). A "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). A student whose family has lost 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, does not lose his right to attend school in the district where he 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 Mountain, supra; Appeal of Kenneth R., 30 Ed Dept Rep 297; Appeal of Tynan, 28 id. 4).

Based on the record before me, I find that petitioner has failed to present sufficient evidence that the family's move was temporary, or that she and her family have maintained ties to the Elmont community. Though given ample opportunity, petitioner has failed to supply respondent with any documentary evidence of the alleged problems with her house or reasonable efforts to repair the house, even though many months have passed since her family vacated the premises. It is not unreasonable for a district to deny residency when there is no evidence in the record to support a family’s assertion that their residency outside the district is temporary (Appeal of Schwartzburt, 37 Ed Dept Rep 139).

Furthermore, petitioner admits that she and her children moved in with her parents in Far Rockaway for an indeterminate time period. In her petition, she states that "we are not contesting the fact that we and our son are not residents of the Sewanhaka District. We are . . . requesting that our son be able to finish off the school term at Elmont . . ." Accordingly, these statements provide no basis for concluding that petitioner intends to return to Elmont or that the family has continuing ties to the district’s community.