Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Massapequa Union Free School District regarding residency.

Decision No. 15,828

(August 22, 2008)

Guercio & Guercio, attorneys for respondent, Randy Glasser, Esq., of counsel

AHEARN, Acting Commissioner,--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District (“respondent”) that her son is not a district resident.  The appeal must be sustained.

Petitioner enrolled her son, then four years old, in respondent’s kindergarten in March 2007, claiming to have resided with her son, parents and brother at East Lake Avenue in Massapequa Park (the “East Lake Avenue residence”) since May 2004, and listing her son’s father’s residence outside respondent’s district as Lee Place in Amityville (the “Lee Place residence”).  Petitioner’s mother submitted an affidavit dated March 7, 2007, as owner of the East Lake Avenue residence, that identified petitioner and her son as tenants.

In the Fall of 2007, a speech therapist and special education teacher who delivered services to the student at the East Lake Avenue residence reported that petitioner indicated that her home was in Amityville, outside respondent’s district.  Based on those reports, the district conducted an investigation that included video surveillance of petitioner and her son exiting the Lee Place residence on the mornings of September 17 and 19, 2007, and then exiting the East Lake Avenue residence on the mornings of September 25 and 27, 2007.  Surveillance repeated early in the morning on October 17 and 25, 2007, observed petitioner exiting the Lee Place residence.

On November 1, 2007, respondent’s assistant superintendent for business (“assistant superintendent”) issued a notice to petitioner that a residency hearing would be held on November 9, 2007 and inviting her to submit information establishing her residence.  The assistant superintendent conducted the hearing on that date and petitioner, appearing without an attorney, and her mother offered testimony.  The investigator testified that he conducted surveillance in September and October, 2007 and provided a written report that was introduced as evidence. A video tape recording of the surveillance was also introduced into evidence.

Petitioner testified that she and her son stay overnight at the Lee Place residence every week and that she sometimes drives a vehicle owned by her son’s father.  Petitioner testified that she lived at that address when her son was born in 2002 until sometime in 2004.  Petitioner also testified that she was unemployed, pregnant, and currently residing with her parents.  Petitioner’s mother testified that she allowed her daughter to reside with her without a lease or payment of rent.  Petitioner’s exhibits introduced into evidence at the hearing included correspondence; an interim driver’s license; a Nassau County Board of Elections voter registration card; and a New York State Department of Labor notice; all addressed to her at the East Lake Avenue residence.  Other exhibits introduced included a notarized statement from petitioner’s mother that petitioner and her son reside at the East Lake Avenue residence; a notarized statement by a landlord that petitioner’s son’s father is a tenant at the Lee Place residence; and immunization records for petitioner’s son.

The student’s speech therapist, employed by respondent to provide home services twice a week from February to August 2007 at the East Lake Avenue residence, also testified.  She stated that petitioner requested three copies of all materials, one for the Lee Place residence, one for the East Lake Avenue residence and one to keep in her car.  She also testified that petitioner sometimes made reference in passing “to going home” as though the East Lake Avenue residence was not her home.  She also testified that the room where she provided therapy to petitioner’s son was a den area that did not have as many toys, books or games as she would have expected.  On cross examination, she admitted to only observing that one room in the house and never seeing the basement or bedrooms where petitioner claimed those toys and other objects were kept.

The district also produced a special education teacher who worked with petitioner three hours a week at the East Lake Avenue residence from February to August 2007.  She testified that sometime in July or August 2007, petitioner mentioned living in Amityville.  She also testified that the only toys she saw in the living room at the East Lake Avenue residence were those the school supplied and kept in a basket.  The student’s current therapist at the time of the hearing testified that petitioner denied her request to provide services in the child’s bedroom.

The hearing concluded with a request from respondent’s counsel that petitioner provide a copy of her 2006 tax return within two business days, after which the hearing record would close.  Petitioner stated that she would attempt to submit further documentation but was scheduled to be hospitalized in a few days to give birth and might have a problem complying with the record closing date.

On November 14, 2007, the assistant superintendent issued a letter to petitioner stating that her son is not a legal resident of respondent’s district but rather resides in the Amityville Union Free School District.  The letter informed petitioner that her son would be excluded from respondent’s school program effective November 26, 2007.  This appeal ensued.  Petitioner’s request for interim relief was granted on December 5, 2007.

Petitioner contends that she and her son reside with her parents in the district.  Respondent does not contest that petitioner’s parents reside in the district but denies that petitioner and her son reside with them.  Respondent contends that petitioner and her son reside with the student’s father in Amityville.

I must first address a procedural issue.  Respondent objects to petitioner’s reply, asserting that two statements and eight documents in particular contain new allegations that should not be considered.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  A reply shall be verified in the manner set forth for the verification of an answer (8 NYCRR §275.5).  In addition to containing new allegations and exhibits that are not responsive to new material or affirmative defenses set forth in the answer, petitioner’s reply is not verified.  Therefore, I have not considered petitioner’s unverified reply.

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).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Williams, 42 Ed Dept Rep 8, Decision No. 14,756; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171).

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).

On the record before me, I find that petitioner has demonstrated that she and her son reside with her parents at the East Lake Avenue residence within respondent’s district.  In addition to documents introduced into evidence at the residency hearing, petitioner submitted an affidavit from her mother; her 2006 W-2 form; her 2006 Federal income tax return, her New York State driver’s license issued November 5, 2007; her 2005 membership card from the Society of Diagnostic Medical Sonography; a June 2007 unemployment insurance notice from the New York State Department of labor; and a medical laboratory report for her son; all addressed to her at the East Lake Avenue residence.  Moreover, respondent’s six-day surveillance placed petitioner and her son at her parent’s residence on two of those occasions.  The remaining surveillance is insufficient to counter petitioner’s explanation that she occasionally stays with her son at his father’s residence but her parents are allowing her to reside with them and that her pregnancy and unemployment interfered with establishing other living arrangements.  Therefore, I am constrained to find, on the record before me, that respondent’s determination is based on insufficient evidence and is arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit petitioner’s son to attend school in Massapequa Union Free School District without the payment of tuition.

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