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Decision No. 14,452

Appeal of AUDREY S. SMITH, on behalf of JAZMYNE, FELEIGHCIA, ALECZANDRIYA, JENNIFER AND TIFFANY SMITH, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 14,452

(August 31, 2000)

Ingerman Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District ("respondent") that she is not a resident of its school district and that, therefore, her children are not eligible to attend the district's schools without the payment of tuition. The appeal must be dismissed.

By letter dated March 24, 2000, respondent's attendance officer, Maria Duran, advised petitioner that the district had investigated and confirmed that petitioner is currently residing at 55 South 32nd Street, Wyandanch, Suffolk County, and consequently that her children are not eligible to attend respondent's schools. On March 30, 2000, petitioner requested a residency hearing. On April 4, 2000, respondent's superintendent of schools, Josephine Moffett, scheduled the hearing for May 2, 2000 at 10 AM. By letter dated May 2, 2000, Superintendent Moffett rescheduled the hearing to May 8, 2000 at 10 AM at petitioner's request due to a death in her family. According to respondent, petitioner requested that the hearing be rescheduled again to noon on May 8, 2000, and for a third time to May 15, 2000 at 9 AM. Petitioner did not appear on any of the hearing dates. By letter dated May 15, 2000, Superintendent Moffett advised petitioner that, "Your failure to appear at this hearing leaves us no choice but to exclude your children from the Freeport School District. Their last day of attendance in Freeport Schools will be Friday, May 19, 2000."

Petitioner commenced this appeal on May 17, 2000 and requested an interim order directing respondent to permit her children to continue to attend school in the district pending a final determination on the merits. An interim order was issued on May 26, 2000.

Petitioner contends that her children reside at 89 Independence Avenue, Freeport, which is within respondent's district. This is the residence of petitioner's mother-in-law, the children's grandmother. Petitioner contends that she left this residence temporarily to live with her brother at 55 South 32nd Street, Wyandanch, to be closer to Stony Brook University Hospital where her father is hospitalized, and has spent the majority of the first five months of this calendar year residing in Wyandanch. Petitioner states that her children remained at 89 Independence Avenue, Freeport, but would visit her in Wyandanch from time to time on weekends and school holidays or when it was too late to drive back to Freeport. Petitioner states that she continues to exercise parental control over the children.

Respondent contends that petitioner and her children reside outside the district at 55 South 32nd Street, Wyandanch. Respondent also contends that petitioner fails to state a cause of action, and that she has failed to exhaust her administrative remedies before bringing this appeal.

Before addressing the merits, I will discuss the procedural issues. Respondent contends that petitioner fails to state a cause of action. Section 275.10 of the Commissioner's Regulations requires that a petition contain a clear and concise statement of the claim showing that petitioner is entitled to relief. Petitioner is not represented by counsel. In such cases, a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing party (Appeal of Johnson, 34 Ed Dept Rep 59, Decision No. 13,233; Appeal of Cerilli, 33 id. 385, Decision No. 13,087). I find that the petition sufficiently frames petitioner's claim for relief, permitting respondent to address petitioner's allegations. Because respondent has failed to establish that it was prejudiced by petitioner's drafting, I will not dismiss the appeal on that basis (Appeal of Johnson, supra).

Respondent also contends that petitioner failed to exhaust her administrative remedies, based on the fact that she did not attend the scheduled residency hearings. Section 100.2(y) of the Commissioner's Regulations specifically states that the board of education or its designee may make residency determinations. After petitioner failed to attend the last scheduled hearing, respondent's superintendent issued a determination on May 15, 2000, excluding petitioner's children from respondent's schools after May 19, 2000. Respondent does not deny that the superintendent was its designee to make residency determinations. Thus, respondent cannot now claim that petitioner failed to exhaust her administrative remedies, when there is no showing that the superintendent was not authorized to act for the board (Appeal of Berliner, 38 Ed Dept Rep 181, Decision No. 14,010).

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 the 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 Lapidus, 40 Ed Dept Rep _____, Decision No. 14,408; Appeal of Degeorge, 39 id. _____, Decision No. 14,321; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). For purposes of Education Law "3202, a person can have only one legal residence (Appeal of Chan, 39 Ed Dept Rep 200, Decision No. 14,214; Appeal of Gannon, 37 id. 135, Decision No. 13,823; Appeal of Elliott, 36 id. 70, Decision No. 13,660). Residence is acquired by one's physical presence as an inhabitant within the district combined with an intent to remain (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016; Appeal of Gannon, supra). In addition, a child's residence is presumed to be that of his or her parents or legal guardians (Appeal of White, 39 Ed Dept Rep 103, Decision No. 14,186; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). However, this presumption may be rebutted in a proper case (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Rivera, 38 id. 119, Decision No. 13,997; Appeal of Murphy, 37 id. 162, Decision No. 13,831). To rebut the presumption, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to another person (Appeal of Burdi, 39 Ed Dept Rep 176, Decision No. 14,206; Appeal of Rosati, 38 id. 216, Decision No. 14,018; Appeal of Bocek, 37 id. 130, Decision No. 13,822).

On July 28, 1999, I rendered a decision involving these same parties concerning petitioner's residency in this district. In that decision, petitioner contended that she and her children resided with her mother at another address in the district. I sustained petitioner's appeal, finding that respondent's evidence was insufficient to support its determination that petitioner was not a district resident (Appeal of Smith, 39 Ed Dept Rep 67, Decision No. 14,175).

An important factor in this case is petitioner's failure to attend the scheduled residency hearings. The May 2, 2000 letter from Superintendent Moffett rescheduling the first hearing alludes to a death in petitioner's family. Petitioner claims in her petition, "The School was notified in writing then [sic] my sister passes [sic] away 1.5 weeks ago and they did not want to allow for that either." However, other than making this general comment, petitioner offers no explanation for her failure to attend these hearings on the scheduled dates.

Respondent based its determination on a number of pieces of evidence. On March 20, 2000, respondent's attendance officer, Ms. Duran, received a telephone message from petitioner's ex-husband in which he asserted that petitioner and her children were residing at the Wyandanch residence. Respondent sent a community worker to 89 Independence Avenue, Freeport, to verify the residence of petitioner and her children. Respondent asserts that the homeowner at 89 Independence Avenue, Freeport, advised the community worker that petitioner and her children did not reside at that residence. Also, respondent presents an April 10, 2000 written statement from the daughter of the landlord at 89 Independence Avenue, Freeport, declaring that petitioner has not resided at that address since 1995. Respondent states that petitioner's children were driven by automobile or taxi from the Wyandanch residence on several mornings on school days between the end of March 2000 and the first day of May 2000 and presents a surveillance report in support of this claim. Respondent also presents an affidavit from Kathy Notheis, the secretary to its Executive Director of Personnel and Special Projects. In the affidavit, Ms. Notheis states that on May 1, 2000 she called the home telephone number provided by petitioner and identified herself as calling from the Freeport public schools; that the person who answered the telephone was petitioner's mother-in-law, who confirmed that this was the telephone for 89 Independence Avenue, Freeport; and that petitioner's mother-in-law advised her that petitioner did not reside at that address and that she did not know how to contact her.

In support of her residency claim, petitioner provides the following documents, each bearing the address of 89 Independence Avenue, Freeport: an April 20, 2000 letter from the New York City Parking Violations Bureau; an envelope from Family Court postmarked May 15, 2000; a check from a law firm dated January 21, 2000; an undated envelope from the Nassau Support Collection Unit with an attached statement from the collection unit dated April 24, 2000 which had no address. Petitioner also provides a letter from a learning center that is neither addressed nor dated. Finally, petitioner provides a March 3, 2000 letter from the Associate Director of Social Work Services at Stony Brook University Hospital Medical Center addressed to whom it may concern, stating that the hospital admitted a patient, Willie Brown, on February 21, 2000, and that the patient is in critical condition. I note that petitioner has not submitted reply papers and has failed to offer a rebuttal with respect to the evidence offered by respondent, including the affidavit of Ms. Notheis stating that petitioner's mother-in-law told her that petitioner did not reside at 89 Independence Avenue, Freeport.

I do not find petitioner's evidence of residency at 89 Independence Avenue, Freeport, to be persuasive. Petitioner has failed to establish that she has any residence in respondent's district, and she admits that she has not relinquished parental control of her children. On this record and in light of petitioner's failure to attend the scheduled residency hearings, I find that respondent's determination that petitioner and her children are not residents of the district was neither arbitrary, capricious, nor unreasonable. Accordingly, respondent's determination will not be set aside (Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653).