Leo P. Davis, P.C., attorney for petitioner

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the William Floyd Union Free School District ("respondent") that her sons, Claudio and Sergio, are not district residents. The appeal must be dismissed.

Petitioner"s sons have attended school in respondent"s district for several years. Respondent has apparently suspected at various times during that period that the boys were not district residents. In May 1996, the district notified petitioner that her sons would be removed from the district"s enrollment list as of June 30, 1996, citing proof that petitioner and her sons resided at 903 Bellport Avenue, property outside the district apparently owned by the boys" father. However, after petitioner presented a letter from her landlord reflecting that she lived in the district, the boys" enrollment was reinstated. Again in February 1999, respondent became suspicious of the boys" residency. However, respondent continued the boys" enrollment after petitioner presented mail, library cards and a phone bill for an address in the district.

The district"s latest investigation into the boys" residency was prompted by its receipt in May 2000 of an anonymous letter claiming that petitioner was living with her sons at 903 Bellport Avenue, Bellport, and using a friend"s address to send the boys to school in respondent"s district. After receiving the letter, a district official called the telephone number on file for petitioner and found it had been disconnected. When the district asked Claudio for his home telephone number, he provided the phone number for the 903 Bellport Avenue address. On June 2, 2000, a private investigator hired by respondent witnessed petitioner pick up her sons from school and take them to the 903 Bellport Avenue address. Based on this evidence, Dennis A. Fretto, respondent"s lead attendance teacher, informed petitioner by letter dated June 14, 2000, that he had determined that her sons were not district residents and that they would be removed from the rolls of the William Floyd High School as of June 30, 2000.

On July 12, 2000, Dr. Rocco DiNapoli, respondent"s assistant superintendent for secondary education and administration, conducted a residency hearing pursuant to "100.2(y) of the Commissioner"s regulations. Petitioner appeared on behalf of her sons. By memorandum dated July 20, 2000, Dr. DiNapoli issued a determination finding that petitioner"s sons were not district residents. Dr. DiNapoli based his determination on, among other things, the district"s surveillance evidence establishing 1) that none of the students interviewed at the bus stop for 276 Whittier Drive, where petitioner claims to live, knew petitioner or her sons, and that 2) in the late afternoon of June 2, 2000 petitioner was observed driving her sons from school to the 903 Bellport Avenue address. The hearing officer also noted that petitioner "contradicted herself numerous times, provided no substantial or persuasive evidence, and offered explanations that belied belief." This appeal ensued. Petitioner"s request for interim relief was granted on September 6, 2000.

Petitioner contends that she resides with her sons at 276 Whittier Drive, Mastic Beach, within respondent"s district. To substantiate this contention, she submits, among other things, a photocopy of a current New York State driver"s license and a cellular phone bill, both reflecting the Whittier Drive address. Petitioner also submits an affidavit from Barbara Kruczkowski stating that since the fall of 1996, she has rented the second floor of her Whittier Drive home to petitioner and her sons for $350 per month. Petitioner also includes an affidavit from another tenant in the house confirming that petitioner and her sons live there, and affidavits from two of her sons" friends stating that they have visited the boys" at the Whittier Drive address.

Petitioner admits that she spends time at the 903 Bellport Avenue address, explaining that the house belongs to her sons" father, Justo Ibarra, who lives in Queens, but stays at the house on weekends. Petitioner explains that she goes to the house at least once a day to care for Mr. Ibarra"s pets, take in the mail and houseclean. In exchange, Mr. Ibarra allows petitioner to use his car. Petitioner presents an affidavit from Mr. Ibarra confirming this arrangement. Petitioner also contends that the Bellport Avenue home is in substantial disrepair and essentially uninhabitable. She submits two photographs purportedly of the property revealing overgrown grounds and a deteriorated and unusable in-ground pool.

Petitioner also contends that the hearing officer was not impartial, but instead, acted as part of a "prosecution team," conferring with the district"s lead attendance teacher and investigator during the hearing. Petitioner also attempts to clarify certain apparent inconsistencies in the hearing record pertaining to, among other things, her marital status and her sons" birth dates, and cites her thick Polish accent as a possible explanation for some of these discrepancies.

Respondent maintains that the hearing officer correctly determined that petitioner"s sons are not district residents. Dr. DiNapoli explains that his determination was based, in part, on his conclusion that petitioner lacked credibility, citing, among other things, petitioner"s admissions that she married an 81 year old man in 1978 solely to gain United States citizenship and that she does not file federal income taxes.

Respondent also submits an August 30, 2000 investigation report detailing the results of interviews conducted by its investigator with neighbors at both the 276 Whittier Drive and 903 Bellport Avenue addresses; Carol Kruczkowski (Barbara Kruczkowski"s husband); and Scott Abendroth, one of petitioner"s sons" friends. According to the report, Mr. Constantino, who lives directly across the street from 276 Whittier Drive, stated that Carol and Barbara Kruczkowski live at that address with their son, that he never sees other children or teenagers at the residence and that there are no apartments in the home. Although Carol Kruczkowski confirmed that petitioner and her sons live in the house, respondent"s investigator asserts that he "appeared extremely nervous and reluctant to give out any information."

Respondent"s investigator also obtained a written statement from Scott Abendroth, who, with his father and stepmother present, stated that he had signed the earlier affidavit at the behest of Sergio Ibarra and that the information in that affidavit is false. Scott Abendroth stated that he has never visited petitioner"s sons at the Whittier Drive address and that in fact, the boys live in Bellport.

Marlon Powell, who has resided at 911 Bellport Avenue for the past nine years, told respondent"s investigator that a woman and her two sons, apparently matching the description of petitioner and her sons, live at 903 Bellport Avenue. He also stated that on many occasions over the last several years he has seen the mother early in the morning driving her teenaged sons in the opposite direction from Bellport High School, which is three blocks from the Bellport Avenue address.

Respondent also submits a supplemental investigation report dated September 11, 2000 reflecting that on Monday, September 11, 2000, respondent"s investigator conducted surveillance at 276 Whittier Drive between 6:00 a.m. and 8:00 a.m. and did not see either of petitioner"s sons exit the house. The investigator later confirmed that petitioner"s sons were, in fact, present in school that day.

In her reply, petitioner submits additional evidence in an attempt to counter respondent"s proof, including an affidavit from Mr. Constantino in which he denies telling respondent"s investigator that he did not know petitioner and that she and her sons did not reside at the 276 Whittier Drive address. Mr. Constantino now claims that petitioner and her sons do, in fact, live at the residence. Petitioner also submits yet another affidavit from Scott Abendroth stating that he does not "know for a fact that the Ibarras reside in Bellport"or Mastic Beach"" and that "[b]oth prior statements are now nullified."

Finally, in response to the results of the surveillance conducted by respondent"s investigator on September 11, 2000, petitioner asserts that her sons left for school "just before or at 6:00 a.m." that day, and that they generally arrive at school before 6:20 a.m. in order to be at the library at 6:30 a.m. when it opens.

Education Law "3202(1) provides, in pertinent part:

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 Pierre, 40 Ed Dept Rep ____, Decision No. 14,551; Appeal of Morgan, 38 id. 207, Decision No. 14,016; Appeal of Bogetti, 38 id. 199, Decision No. 14,014). 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 Silvestro, 40 Ed Dept Rep _____, Decision No. 14,476; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). A child"s residence is presumed to be that of his parents or legal guardians (Appeal of Morgan, supra). Where a child's parents live apart, the child can have only one legal residence (Appeal of Plesko, 37 Ed Dept Rep 238, Decision No. 13,850).

This contentious residency appeal highlights the difficulty that can attend a residency determination in cases involving non-traditional living arrangements. Although a thoroughly conducted surveillance effort would have shed considerable light on this matter, I note that respondent"s surveillance evidence is regrettably sparse. However, in an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Lavelanet, 39 Ed Dept Rep 56, Decision No. 14,171) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Dugué, 39 Ed Dept Rep 694, Decision No. 14,352). Although the record presents a close case, I find that petitioner has not sustained her burden.

Preliminarily, I find that neither party has provided conclusive evidence of the boys" residency. Much of the proof submitted by the parties is hopelessly conflicted. However, I find that respondent"s limited surveillance does raise some question about the boys" residency. Respondent"s investigative report establishes that on Friday, June 2, 2000, petitioner"s sons waited close to three hours after school ended for petitioner to pick them up and transport them to the 903 Bellport Avenue address. Although petitioner explains that she goes to the Bellport address to do certain chores for her sons" father, it is not clear why the teenagers would need to wait several hours at school for petitioner, rather than walk the three blocks to the Whittier Drive address, where they allegedly live. Respondent"s surveillance also establishes that on September 11, 2000, respondent"s investigator did not see either of petitioner"s sons exit the Whittier Drive address between 6:00 and 8:00 a.m., even though both were present at school that day. Petitioner"s suggestion that her sons had left that morning before the investigators arrived is not persuasive, inasmuch as petitioner initially introduced proof that her sons" commitments at school commenced at 6:30 a.m. and that the school is only a few blocks from the Whittier Drive address. Although, the interviews with neighbors at both the Bellport Avenue and Whittier Drive addresses by respondent"s investigator have limited probative value, they do cast further doubt on petitioner"s claim that she resides in the district. Most notable is Marlon Powell"s statement that a woman with two sons, matching the description of petitioner and her sons, lives at 903 Bellport Avenue, and that on many occasions he has seen the woman in the morning driving her sons in the opposite direction from the local high school.

Although respondent has introduced much proof to support her contention that she resides at the Whittier Drive address, I do not find her submission sufficient to overcome the substantial questions raised by respondent concerning the boys" residency. Although petitioner submits an affidavit from the owner of the Whittier Drive residence stating that she leases an apartment to petitioner and her sons for $350 per month, petitioner has no written lease or utility bills in her name to substantiate this claim. The electric bill submitted by petitioner identifies "Karol Kruczkowski" as the customer at 276 Whittier Drive. Moreover, petitioner"s claim that she pays only $350 per month for a two-bedroom apartment, including utilities, strains credibility. In any event, cancelled checks reflecting this rent would also strengthen petitioner's case, but were not offered as proof.

I also note that I have not accorded any weight to the affidavits submitted by petitioner from her sons" friends because of the questionable circumstances under which they were obtained. Although Scott Abendroth initially signed an affidavit stating that he regularly visits petitioner"s sons at the 276 Whittier Drive address, he told respondent"s investigator that he had signed the affidavit because his friend, Sergio, had asked him for help, and that the information he provided was untruthful. Moreover, the second affidavit obtained by petitioner from Scott Abendroth in which he allegedly repudiates both earlier statements, raises further question about the tactics used by petitioner to obtain these statements. I also note that Mr. Abendroth"s statement is substantially similar to the one signed by Britt Powitz, another friend of the boys.

In short, although respondent"s proof is less than conclusive, it raises a serious question as to whether petitioner"s sons are district residents. On the record before me, I find that petitioner has not sustained her burden of establishing that her sons are district residents, and that respondent's determination is not, under the circumstances, arbitrary or capricious.

I have examined petitioner"s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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