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Decision No. 15,469

Appeal of GWEN BAINS, on behalf of her children MONIQUE and CHRISTOPHER, from action of the Board of Education of the Freeport Union Free School District regarding residency.


Decision No. 15,469


(September 6, 2006)


Ingerman Smith LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel


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

During the Winter of 2005, the district began to suspect that petitioner and her children did not reside within the district.  The district retained a private investigation agency to conduct surveillance.  On three occasions, an investigator observed petitioner's spouse and children leaving a Brooklyn address early in the morning and observed Christopher being dropped off at respondent's Dodd Middle School.

In a letter to petitioner and her spouse, dated January 4, 2006, respondent's principal clerk (“clerk”) stated that respondent investigated and confirmed that petitioner and her family were residing at the Brooklyn address, and gave January 13, 2006 as the last day her children would be permitted to attend school.  Petitioner responded by letter on January 4, 2006, contending that she and her family resided at Stirling Avenue, in Freeport, and were finalizing the purchase of a home in the Village of Freeport.  Petitioner also stated that she was "consistently" at a Pleasant Place address in Brooklyn, New York to care for her elderly parent.

The district continued its investigation and found that petitioner’s family was one of four registered at the Stirling Avenue address, which is a single family home; that neither petitioner nor her family were present during five home visits made to the Stirling address; that petitioner's sister told an investigator that neither petitioner and nor her family reside at the Stirling address, but instead reside in Brooklyn; and that the emergency contact phone number provided for Christopher was for the Pleasant Place address in Brooklyn.  By letter dated April 11, 2006, the clerk informed petitioner and her spouse that petitioner and her family resided at the Brooklyn address and that her children were not entitled to attend respondent's schools.  By letter dated April 12, 2006, petitioner reiterated her contentions, including that her annual lease had been extended until August 1, 2006, and that the move to the Village of Freeport was proceeding.

By letter dated April 28, 2006, respondent's executive director for operations (“executive director”) denied petitioner's appeal of the exclusion of her children from respondent's schools, but extended the last day for their attendance to May 5, 2006.  The executive director subsequently met with petitioner on May 2, 2006, and requested that she provide documentation supporting her allegation that she was actively seeking a residence within the district.  By letter dated May 5, 2006, the executive director informed petitioner that he had not received any of the requested documentation and that the exclusion of petitioner's children was upheld.

Thereafter, petitioner provided the executive director with a signed, unsworn letter, dated May 10, 2006, from a "Tonia Williams" stating that petitioner's children resided with her at Meister Boulevard in Freeport.  No information was provided regarding the relationship of Ms. Williams to petitioner or her family.

On May 22, 2006, the executive director met with petitioner's spouse and daughter Monique.  Petitioner and respondent's superintendent also participated in the meeting via conference call.  By letter dated May 22, 2006, the superintendent informed petitioner and her spouse that petitioner's children would be allowed to continue to attend respondent’s school until June 2, 2006 and further provided a deadline of May 24, 2006 for petitioner to provide an original, signed and notarized lease agreement or residency affidavit verifying that the children and family reside at the Meister Boulevard address.  Petitioner did not submit any further documentation in response to the superintendent's letter.  This appeal ensued.  Petitioner’s request for interim relief was granted on June 13, 2006.

Petitioner alleges that she and her family reside in the district.  Respondent denies that petitioner and her family reside in the district and contends that its decision is rational and supported by the evidence produced during its investigation.

Initially, I must address a procedural matter.  Respondent requests that I consider its answer to the petition even though it was submitted belatedly.  I note that the answer is substantially similar to respondent's affidavit in opposition to petitioner's request for a stay, which was submitted in a timely manner.  Accordingly, in the absence of any prejudice to petitioner, I have considered respondent's answer (seeAppeal of Salerno, 45 Ed Dept Rep 106, Decision No. 15,272).

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “Residence” for purposes of Education Law �3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

On the record before me, I cannot conclude that respondent's determination, that Monique and Christopher are not district residents, was arbitrary or capricious.  Petitioner provides no more than conclusory allegations regarding her residency within the district and has failed to rebut respondent's investigative findings that she and her family do not reside in the district.  Moreover, although given ample opportunity by the district, petitioner has failed to provide sufficient documentation to establish that she either resides at the Meister Boulevard address or, in the alternative, that she has transferred full custody and control of her children to the alleged owner of that residence.