Appeal of KRISTYN WHITEHEAD, on behalf of her daughters ANNABELLA and ERIKA BIGNESS, from action of the Board of Education of the North Syracuse Central School District regarding residency.

Decision No. 16,448

(January 24, 2013)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Subhash Viswanathan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the North Syracuse Central School District (“respondent”) that her daughters, Annabella and Erika Bigness, are not district residents.  The appeal must be dismissed.

During the 2010-2011 school year, Annabella attended respondent’s Roxboro Road Elementary School (“school”).  Erika was scheduled to attend kindergarten in respondent’s schools in the 2011-2012 school year.  It appears from the record that during Erika’s registration with respondent, a school nurse received information from a “distant relative” of petitioner’s indicating that petitioner resided outside respondent’s district and was using her mother’s address in Mattydale (“Mattydale address”), within respondent’s district, so her children could attend respondent’s schools.  In addition, medical documentation submitted for Erika listed her address in Syracuse, outside of respondent’s district (“Syracuse address”).  Based on this information, the district began investigating petitioner’s residency.

By letter dated March 22, 2011, respondent’s director of information services wrote to petitioner and gave her the opportunity to submit information in support of her residency in respondent’s district.  In response, petitioner submitted a number of documents, including a “residency affidavit” stating that she and her children resided at the Mattydale address, as well as copies of various bills, letters and her driver’s license which all listed the Mattydale address.  Thereafter, respondent retained an investigator who conducted surveillance and reported that: (a) a vehicle owned by petitioner was observed leaving the Mattydale address at 9:45 p.m. on Wednesday, April 6, 2011, and parking outside the Syracuse address at 10:00 p.m.; (b) this vehicle was again observed at the Syracuse address at 10:15 p.m. on Thursday, April 7, 2011; and (c) petitioner and one of her children were observed leaving the Syracuse address early in the morning on Friday, April 8, 2011, and driving to the Mattydale address where the child was dropped off.

Upon reviewing all of the information, respondent’s superintendent notified petitioner, by letter dated April 12, 2011, of the determination that she was not a district resident, and that Annabella would be excluded from its schools, effective April 19, 2011.[1]  On April 26, 2011, the superintendent and director of information services met with petitioner and her mother but did not alter the district’s residency determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 2, 2011.

Petitioner contends that the Syracuse address is owned by her children’s father and that they stay with him overnight on weekends.  Petitioner maintains that, while her children sometimes see their father after school during the week, they do not stay with him overnight.  She asserts that they live with her at the Mattydale address, owned by her mother, in respondent’s district.  In support of her contentions, petitioner submits several documents, including copies of bank statements, loan statements, insurance statements, a letter from an attorney, a cell phone bill, medical records, and a driver’s license which list her address as the Mattydale address.

Respondent generally denies petitioner’s contentions and asserts that its residency decision was not arbitrary, capricious or an abuse of discretion.  In addition, respondent contends that petitioner’s appeal is untimely.

I will first address respondent’s procedural objection.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner challenges respondent’s April 12, 2011 residency determination.  However, she did not commence this appeal until August 19, 2011, more than four months later.  The Commissioner has previously excused delays in residency cases where, interalia, the facts suggest residency in the district, the delay is deminimus, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of Faucett, 38 id. 117, Decision No. 13,996).  However, on the record before me, I find that these factors are not present here.  Accordingly, I must dismiss the appeal as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits. 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

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).  A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On the record before me, I find that petitioner has failed to meet her burden of proving that she and her children reside in respondent’s district.  Although the bills, receipts and other documents petitioner submitted reflect the Mattydale address owned by her mother, I am unable to find that they are dispositive of petitioner’s residency and/or establish her physical presence or intent to remain in respondent’s district.  This is particularly true where, as here, it is undisputed that the in-district address is owned by petitioner’s mother, and surveillance indicates that petitioner was present at the Syracuse address during the week, and she was seen leaving the Syracuse address on a Friday morning with one of her children.  The latter observation directly conflicts with petitioner’s assertion that her children do not stay at the Syracuse address overnight during the school week.  Taken together with the information provided by the school nurse, I cannot conclude that respondent’s residency determination was unreasonable, arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of her children at any time should circumstances change, and to present any new information or documentation for respondent’s consideration (seeAppeal of Williams, 50 Ed Dept Rep, Decision No. 16,302; Appeal of Braxton-Strohman, 50 id., Decision No. 16,183).

THE APPEAL IS DISMSSED.

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