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Decision No. 14,928

Appeal of STEPHANIE DELACRUZ, on behalf of her daughter ANGELINA, from action of the Board of Education of the Floral Park-Bellerose Union Free School District regarding residency.



(August 14, 2003)


Kevin A. Seaman, Esq., attorney for respondent


CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of Floral Park-Bellerose Union Free School District ("respondent") that her daughter is not a district resident. The appeal must be dismissed.

At the beginning of the 2002-2003 school year, petitioner"s daughter told her fourth grade teacher at respondent"s elementary school that she no longer resided within the district, but instead was residing in Elmont.  The district employed an investigator who conducted surveillance at the Elmont address. The investigator"s November 19, 2002 report indicates that on November 13, 14, 15 and 19, 2002, he observed petitioner and her daughter leaving the Elmont residence at approximately 7:30 in the morning to travel to a Bellerose address within respondent"s district.  The report further indicates that on each of these occasions the investigator observed petitioner"s daughter leaving the Bellerose residence approximately one-half hour later with another adult who walked her to school.   

Petitioner met with respondent"s superintendent in December 2002.  She alleges that she told him that she and Angelina lived with her aunt at the Bellerose address and were in the process of finding a more suitable, permanent home. She further stated that she visited the Elmont residence of her "significant other" a "couple nights" each week.  Respondent contends that at this meeting petitioner conceded that she and Angelina reside in Elmont and stated her intent to relocate within the district. 

A further surveillance report dated December 18, 2002 shows that petitioner and her daughter were observed leaving the Elmont residence at 8:00 a.m. on December 9, 2002, noting that petitioner met with respondent"s superintendent that morning.  Yet another surveillance report dated March 20, 2003 indicates that petitioner"s daughter was observed leaving the Elmont residence on March 19 and 20, 2003 at approximately 7:30 a.m. and arriving at the Bellerose residence at approximately 8:00 a.m.  By letters dated March 21 and 25, 2003, respondent"s superintendent advised petitioner that she and her daughter were not district residents. This appeal ensued. Petitioner"s request for interim relief was granted on April 10, 2003.

Petitioner asserts that she intends to reside with her aunt within respondent"s district until approximately August 2003.  Respondent contends that its determination that petitioner and her daughter are not district residents is reasonable and should be upheld because the surveillance reports show that petitioner is an Elmont resident who brought her daughter to the Bellerose address to attend respondent"s school. Petitioner did not submit a reply or other response to explain the information in the surveillance reports.

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 B.O. and D.O., 42 Dept Rep ____, Decision No. 14,769; Appeal of L.W., 41 id. 372, Decision No. 14,717; Appeal of Pierre, 40 id. 538, Decision No. 14,551).

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 Brown, 42 Ed Dept Rep ___, Decision No. 14,760). Petitioner has failed to meet that burden here. Her assertion that she and her daughter reside in respondent"s district and merely visit the Elmont residence is inconsistent with the surveillance reports, which show petitioner and her daughter leaving the Elmont address on several dates at approximately 7:30 a.m.  Petitioner did not submit a reply and offers no further explanation for the observations made by respondent"s investigator.  Petitioner"s allegation that she and her daughter are homeless and temporarily live with her aunt because they are in the process of finding a more suitable home is also contradicted by the surveillance.  Moreover, that assertion is inconsistent with petitioner"s claim that she has surrendered parental control of Angelina to her aunt.  Furthermore, petitioner admits that she continues to jointly support and exercise control over her daughter"s activities and behavior.  Therefore, the presumption that the child resides with her parent is not rebutted.  On the record before me, I do not find respondent"s determination that petitioner and her daughter are not district residents arbitrary or capricious.