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Decision No. 15,105

Appeal of EMMA INNOCENT, on behalf of her daughter DAPHNE, from action of the Board of Education of the Islip Union Free School District regarding residency.


Decision No. 15,105


(August 26, 2004)


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


Petitioner appeals the determination of the Board of Education of the Islip Union Free School District (�respondent�) that her daughter, Daphne, is not district resident.  The appeal must be dismissed.

In February 2004, the district�s senior administrative aide (�aide�) received a report that Daphne was being dropped off within the district and walking to school.  Accordingly, the district�s residency investigator initiated a surveillance of petitioner�s alleged Moffitt Boulevard address.  The investigator reported that when he visited that address on February 26, at 6:45 a.m., an adult male answered and stated that no one named Daphne lived there.

When the investigator interviewed Daphne at school on March 9, she insisted that she lived on Moffitt Boulevard.  Daphne told the investigator that she had stayed at her father�s house the previous night and also stays with her boyfriend, but refused to provide either address.  The investigator then called petitioner who admitted she did not reside in the district but stated she was trying to obtain a residence there.  Petitioner also admitted that Daphne stays with her father in Wheatley Heights, outside the district, and requested that future correspondence be directed there.

In a letter dated March 10, 2004, respondent�s superintendent advised petitioner that Daphne was not a district resident and offered her the opportunity to provide evidence of Daphne�s residency.

     On March 25, 2004, petitioner met with the aide and admitted she lived outside the district in Brooklyn, but stated that Daphne was living with friends in the district.  On March 26, 2004, petitioner submitted an affidavit in which she swore that she resided in Brentwood (not Brooklyn), that Daphne had been living with petitioner�s sister in the district until the sister sold her house, and that Daphne was now living with a friend in the district.  Petitioner also swore that she was looking for an apartment and planned to move into the district within a month to 45 days, and that she would provide for Daphne�s necessities.  Petitioner�s friend, Ms. Steizinger, submitted a custodian�s affidavit dated March 26, stating that Daphne would reside with her on Willow Street in the district for about a month until petitioner found an apartment.  By letter dated May 29, 2004, the superintendent agreed to permit Daphne to complete the 2003-2004 school year at the district�s schools based on the statements in the two affidavits.

     Subsequent to the superintendent�s March 29, 2004 letter, the aide received an anonymous tip that petitioner and Daphne were residing in Massapequa, outside the district.  Consequently, the district continued its investigation at the Brentwood address listed in petitioner�s affidavit and the Willow Street address listed in Ms. Steizinger�s affidavit.  The investigator reported that when he visited the Brentwood address at 6:30 a.m. on March 30, the adult female who answered the door told him that no one by the name of �Innocent� resided there.  He also reported that when he visited the Willow Street address on March 31 looking for Daphne, the adult female who answered the door told him that no child lived there.  Five more visits to that address yielded negative results.  On April 20, 2004, the investigator observed the Massapequa address from 6:10 a.m., until he confirmed Daphne was in school at 7:50 a.m., but did not see her exit the residence.

     By letter dated April 22, 2004, the superintendent informed petitioner that based on information provided by the investigator, he had reason to believe that Daphne was not residing on Willow Street, within the district.  Therefore, Daphne would be excluded from the district�s schools effective April 30, 2004.  This appeal ensued.  Petitioner�s request for interim relief was granted on May 27, 2004.

     Petitioner asserts that she and Daphne reside with Ms. Steizinger on Willow Street in the district, and that Daphne intends to live there for one year until she graduates from high school in 2005.  Respondent asserts that the petition fails to state a claim upon which relief may be granted and that neither petitioner nor Daphne reside in the district.

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 Sloley-Raymond, 44 Ed Dept Rep ___, Decision No. 15,085; Appeal of O.W., 43 id.  ___, Decision No. 14,949).  A child�s residence is presumed to be that of her parents or legal guardians (Appeal of Sloley-Raymond, supra; Appeal of O.W., supra).  This presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing in the district (Appeal of Slolely-Raymond, supra; Appeal of O.W., supra).  Moreover, where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Sloley-Raymond, supra; Appeal of O.W., supra).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Newby, 42 Ed Dept Rep 107, Decision No. 14,790; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757).  In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of B.H. and B.H., 43 Ed Dept Rep __, Decision No. 14,919; Appeal of J.T., 43 id. __, Decision No. 14,917).

In this case, petitioner has given inconsistent and conflicting addresses and information, and has failed to rebut any of the district�s surveillance reports.  Surveillance indicates that petitioner and Daphne do not live in the district, either on Moffitt Boulevard, the address on record with the district, or on Willow Street, the address she alleges in the petition.  In fact, petitioner admitted three times that she lived outside the district.

In addition, there is no evidence that petitioner transferred custody or control of Daphne to Ms. Steizinger.  In sum, petitioner has submitted no documentation or evidence to rebut the presumption that Daphne resides with her, somewhere outside the district.  Accordingly, respondent�s determination was not arbitrary or capricious, and will not be set aside.