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Decision No. 15,602

Appeal of CLAYTON BROWN, on behalf of his son JACARI LEE, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 15,602

(June 28, 2007)

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that his son, Jacari, is not a district resident.  The appeal must be dismissed.

By letter dated December 9, 2006, the district’s Director of Pupil Personnel Services (“director”) notified petitioner that the district had become aware that he was residing outside the district.  The letter further informed petitioner that if he did not contest the information in the letter, Jacari would be excluded from school effective December 22, 2006.  Petitioner requested a review and a hearing was held on January 3, 2007, at which petitioner, the director and the district registrar were present.

Although the record does not contain a hearing transcript, the district’s brief summary of the hearing states that the director informed petitioner that its evidence indicated that he did not reside on Owasco Road in West Hempstead, the address he claimed as his district residence, but rather resided on 133rd Avenue in Jamaica, Queens.  According to respondent, the residence on Owasco Road is owned by petitioner’s parents, and it appeared that Jacari stayed there with his grandparents during the week.  In response, petitioner asserted that he resides on Owasco Road but admitted that he sometimes stayed in Jamaica with his girlfriend.  He also stated that Jacari had been staying with him there recently because his parents were out of the country due to several deaths in the family.

By letter dated January 10, 2007, respondent affirmed the director’s decision that petitioner and Jacari are not district residents and informed petitioner that Jacari would be excluded from school effective January 12, 2007.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 30, 2007.

Petitioner requests a determination that Jacari is a district resident entitled to attend the district’s schools without the payment of tuition.  Respondent contends that petitioner is not a district resident.

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).

     Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917).

     A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

The record indicates that the district hired a private company to investigate petitioner’s residency.  Surveillance was undertaken on eight dates between November 20 and December 5, 2006.  The surveillance report revealed that after school on November 20, 2006, Jacari arrived by bus at 3:12 p.m. at the Owasco Road address and waited outside until petitioner arrived in a black SUV registered to his girlfriend at the Jamaica address.  The following morning, at 6:23 and 8:00 a.m., neither Jacari, petitioner, nor the black SUV was observed at the Owasco Road address.  However, at 9:17 a.m., Jacari was dropped off at school by the black SUV.  On November 27, Jacari and petitioner were observed exiting the Jamaica address and getting into the black SUV at 8:28 a.m.  The following morning on November 28, the investigator did not observe anyone depart the Jamaica address but Jacari was at school and told his teacher he had taken the bus.  On the next four surveillance dates, November 29, December 1, 4 and 5, Jacari was observed walking to the bus stop from the Owasco Road address either with an older male (not petitioner) or alone.

The only vehicle ever observed to be parked at Owasco Road was registered to petitioner’s father, the homeowner.  Petitioner has no cars registered to his name.  The black SUV was only observed to be parked at the Jamaica address.  The investigator also noted that on the first day of surveillance, on November 20, a neighbor approached him and questioned his presence.  He opined that the neighbor alerted the family of the investigation.

In addition to the surveillance report, the registrar’s review of petitioner’s residency documentation revealed that it did not contain the requisite proof of residency.  Although petitioner claims to be a tenant at his parents’ home on Owasco Road, his records did not include the required notarized affidavit of residency or affidavit from his parents attesting to his residence at that address, or any other acceptable proof of residency according to the district’s “Procedures for Registration.”

The only evidence petitioner provides to rebut respondent’s surveillance is a notarized statement from the owner of the Jamaica residence, his alleged girlfriend, that she resides there unaccompanied and that neither petitioner nor Jacari reside there with her.  This statement alone is wholly insufficient to establish that petitioner resides in the district.  Furthermore, to the extent Jacari may reside with his grandparents during the school week, one can infer from the record that he is doing so to take advantage of the schools of the district, which is insufficient for residency purposes.  There is no allegation or showing that petitioner has transferred custody and control of Jacari to his grandparents.

Accordingly, on the record before me, petitioner has failed to meet his burden of proof and I find no basis to set aside respondent’s determination.