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Decision No. 15,103

Appeal of NADINE COLLINS, on behalf of ANTHONY and DANTE McLAUGHLIN, from action of the Board of Education of the Baldwin Union Free School District regarding residency.



(August 23, 2004)


Wanda L. Selinger, Esq., attorney for petitioner


Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that her children, Anthony and Dante, are not district residents.  The appeal must be dismissed.

Petitioner registered Anthony and Dante with respondent in September 2002 and represented at that time that she resided on Milburn Avenue in Baldwin, within respondent"s district.

In March 2004, the principal of the Meadow Elementary School reported to respondent"s Registrar and Residency Investigator ("investigator") that Anthony was usually late for school, was picked up everyday after school, and that she had learned that petitioner"s family had moved to Hempstead.  Based on this information, the investigator conducted surveillance on the mornings of March 17 through 19, 2004 and March 22 through 24, 2004 at a home owned by petitioner on Elizabeth Avenue in Hempstead.  On all six dates, the investigator observed the children leaving the Hempstead home, and being driven to the Meadow School.  In addition, the investigator subsequently visited the Milburn Avenue address and found the home boarded up and posted with a February 18, 2004 notice warning that the building was unsafe.

By letter dated March 23, 2004, respondent"s Director of Pupil Services advised petitioner that the district had reason to believe that her family did not reside in the district and invited petitioner to attend a March 29, 2004 meeting where she would have the opportunity to present evidence to support her residency claim.  At the meeting, petitioner essentially admitted that she had vacated the Milburn Avenue residence a year earlier and was living at the Hempstead address, but claimed that she intended to return to her home in the district once construction on the house resumed.

By letter dated April 14, 2004, respondent"s Director of Pupil Services advised petitioner that the district had determined that the family did not reside in the district based on, among other things, petitioner"s admission that she did not reside at the Milburn Avenue home during the past year.  The letter advised petitioner that her children would be excluded from school effective April 21, 2004.  This appeal ensued.  Petitioner"s request for interim relief was granted on May 24, 2004.

Petitioner maintains that she was forced to vacate the Baldwin home in May 2003 because the house was uninhabitable due to demolition and construction.  She claims that, in the interim, she has stayed either at the Baldwin residence of her youngest child"s grandmother or her Elizabeth Avenue home in Hempstead, which she uses for her child daycare business.

Petitioner claims that she intends to renovate the Baldwin home and move back in, but admits that, in October 2003, construction stopped due to a dispute with her contractor and financing issues.  Petitioner asserts that construction has now resumed, and submits an affidavit from a plumber she has hired.  Petitioner explains that she sold the Baldwin home in June 2002 to her children"s father "to pay off [the] mortgage and obtain the funds needed to remodel the house," but asserts that legal ownership is not dispositive.

Respondent maintains that it properly determined that petitioner is not a district resident because she is living in Hempstead and has no intention of returning to the Milburn Avenue home.  In support of its position, respondent submits, among other things, surveillance reports showing the children leaving the Hempstead home on multiple occasions and being transported to school, as well as evidence that the Milburn Avenue home is in foreclosure and has been declared unsafe because of a crack in the foundation.

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 Marshall, 43 Ed Dept Rep __, Decision No. 14,911; Appeal of B.O. and D.O., 42 id. 42, Decision No. 14,769; Appeal of Metze, 42 id. 40, Decision No. 14,768).  Residence for purposes of Education Law "3202 is established by one"s physical presence as an inhabitant within the district and an intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Marshall, supra; Appeal of B.O. and D.O., supra).  A residence is not lost, moreover, until it is abandoned and another is established through action and intent (Appeal of Scaffa, 40 Ed Dept Rep 177, Decision No. 14,453; Appeal of Britton, 33 id. 198, Decision No. 13,022; Appeal of Kurtz, 32 id. 112, Decision No. 12,776).

A person"s temporary absence from the school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one"s permanent residence (Appeal of Weisberg, 39 Ed Dept Rep 737, Decision No. 14,365, judgment granted dismissing petition to review, Weisberg v. Mills, et al., Sup.Ct., Albany Co., Special Term (Malone, J.), November 27, 2000, n.o.r.; Appeal of Schwartzburt, 37 id. 139, Decision No. 13,825; Appeal of Kenneth R., 30 id. 297, Decision No. 12,471).  To determine one"s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family"s continuing ties to the community and their efforts to return (Appeal of Weisberg, supra; Appeal of Schwartzburt, supra; Appeal of Gannon, 37 Ed Dept Rep 135, Decision No. 13,823).  Respondent's determination concerning residency will not be set aside unless the determination is arbitrary and capricious (Appeal of Weisberg, supra).

Petitioner admits that she does not presently reside at the Milburn Avenue residence because it is uninhabitable.  Further, although petitioner claims that she sometimes stays with her youngest child"s grandmother in Baldwin, she neither claims nor supplies proof that she resides at that location.  In contrast, respondent"s surveillance supports the conclusion that petitioner and her sons currently reside in Hempstead.  Thus, petitioner"s residency claim distills to whether her absence from the district is temporary, as she contends, or permanent, as respondent contends.

Although petitioner claims that she intends to return to the district, she has failed to supply sufficient evidence demonstrating progress toward achieving that objective.  The record reflects that petitioner vacated the Milburn Avenue house well over a year ago, and although the house is uninhabitable, in need of substantial renovations, and has been declared unsafe by the Town of Hempstead because of a crack in the foundation, the only work done on it thus far is the installation of "a waste line and vents" by a plumber.  Further, although petitioner submits an estimate from a contractor for certain work on the home, petitioner has failed to establish that she has actually hired a contractor.  Nor does petitioner explain how she intends to rectify the structural problem currently rendering the house unsafe.  The record further reflects that petitioner no longer owns the home, and the property is in foreclosure.

A school district cannot be expected to allow students to continue to attend its schools indefinitely based on an expressed intent to return to the district (Appeal of Weisberg, supra).  Petitioner"s claimed intent to return to the district is insufficient to establish residency, absent either substantial progress repairing and renovating the Milburn Avenue house or, at the very least, a concrete and realistic plan to do so.  Under these circumstances, I cannot conclude that respondent"s determination is arbitrary or capricious (see, Appeal of Weisberg, supra; Appeal of Gannon, supra).