Appeal of JOEL MARRAIN, on behalf of his step-daughter ANISA TOPPIN, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 16,539

(August 28, 2013)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that his stepdaughter, Anisa Toppin, is not a district resident. The appeal must be dismissed.

Although he identified himself as Anisa’s father in the petition, according to the record, petitioner is her step-father. During the 2012-2013 school year, Anisa attended respondent’s schools as a resident student because her registration records indicated that she resided on Harrison Place in Bay Shore, New York, within the district. However, on or about March 4, 2013, the district’s director of student services and central registration (“director”)received information that Anisa and her mother, Candis Marrain, were residing on 19th Avenue in Bay Shore, New York, outside the district.

After receiving this information, the director commenced a residency investigation and verified that the19th Avenue residence was located in the Brentwood Union Free School District. The director’s search of the New York State Department of Motor Vehicles records showed that Anisa’s mother had a motor vehicle registered in her name at the 19th Avenue residence.

As a result of searching the Town of Islip’s records, the director learned that the 19th Avenue residence was owned by the Community Development Corporation (“CDC”). On or about March 20, 2013, the director contacted David Rosen, a CDC employee, to confirm whether Anisa’s mother and her children, including Anisa, were residing at the 19th Avenue residence. According to the director, Mr. Rosen stated that Anisa’s mother and Anisa were current tenants of the 19th Avenue residence and that they had been residing there for over a year.

Subsequently, early in the mornings of March 20 and March 21, 2013, the director conducted surveillance of the Harrison Place residence, which was the in-district residence listed on Anisa’s registration records. The director did not observe Anisa’s mother and/or Anisa or the motor vehicle registered to her mother on either one of these mornings.

By letter dated March 21, 2013, the director advised petitioner and Anisa’s mother that a determination had been made that Anisa was no longer entitled to attend the district’s schools because neither she nor they were district residents. The letter further informed petitioner and Anisa’s mother that Anisa would be excluded from school effective April 1, 2013 but that they could contact the director if they wished to formally present evidence in opposition to this non-residency finding.

On March 26, 2013, the director and the district’s assistant superintendent for administration (“assistant superintendent”) held a residency conference that was attended by petitioner and Anisa’s mother. This residency conference was also attended by two individuals who identified themselves, respectively, as Carol Pepper and Esther Roberts. Ms. Pepper claimed to be petitioner’s girlfriend and the owner of a residence at South Penata quit Avenue in Bay Shore, New York, which is the in-district residence where petitioner claims, in the petition, that he and Anisa are residing. Ms. Roberts claimed that she is the owner of the Harrison Place residence in Bay Shore, New York, which is the in-district residence where petitioner claims, in the petition, that Anisa stays, with his family, when he travels for business.

According to the director, at the residency hearing, petitioner submitted a bank account statement addressed to him at the South Penata quit Avenue residence but petitioner did not produce any other documentation to support his claim that he resided there. Nor did petitioner submit any evidence that Anisa’s mother had relinquished full authority and responsibility with respect to Anisa’s support and custody to him.

Moreover, during the residency conference, Anisa’s mother acknowledged that she had been residing at the 19th Avenue residence for “a while.” According to the director, Anisa’s mother also claimed that, although Anisa visits her regularly, Anisa does not live at this residence with her.

Thereafter, in the early morning of March 27, 2013, the director conducted surveillance of the South Penata quit Avenue residence but he did not observe either petitioner and/or Anisa at or exiting from this residence.

On March 27, 2013, Anisa’s mother hand-delivered a note to the district’s office of student services and central registration stating that her children were listed on the lease for the 19th Avenue residence for insurance purposes because they visit her periodically. This appeal ensued. Petitioner’s request for interim relief was granted on April 11, 2013.

Petitioner contends that Anisa resides with him at the South Penata quit Avenue residence, within the district, and, therefore, she is entitled to attend its schools. Petitioner further claims that Anisa began living with him at this address on July 18, 2012 and that the reason she resides with him, instead of her mother, is due to her mother’s alleged 11:00 p.m. to 7:00 a.m. work schedule. Petitioner asserts that Anisa still has contact with her mother, which includes visits. Petitioner also maintains that Anisa stays at the Harrison Place residence, within the district, in case of emergency.

Respondent asserts that the petition fails to state a claim upon which relief can be granted. Respondent further contends that neither petitioner nor Anisa nor her mother have established that they permanently resided within the district during the 2012-2013 school year. Respondent also claims that petitioner has failed to rebut the presumption that Anisa resides with her mother.

I must first address several procedural matters. Pursuant to §276.5 of the Commissioner’s regulations, my Office of Counsel sent a letter to petitioner, dated July23, 2013, asking petitioner to clarify whether he is Anisa’s father or step-father. This letter also asked petitioner to advise as to who has legal custody of Anisa and directed petitioner to provide my Office of Counsel with copies of any legal documents and/or court orders regarding the legal custody of her. In response, petitioner provided an affidavit stating that he is Anisa’s stepfather, that Anisa has resided with him continuously since her birth, that he has maintained exclusive physical custody of Anisa since her birth and that he is awaiting a determination on a petition for sole legal custody of her. However, petitioner did not provide my Office of Counsel with a copy of this alleged petition. Petitioner’s affidavit further states that he resides at the South Penata quit Avenue residence, within the district, that Anisa’s mother resides at the 19th Avenue residence, outside the district and that he and Anisa’s mother are still married.

It appears from the sequence of events that respondent failed to comply with the procedures required by 8 NYCRR§100.2(y). Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools. This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district. It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR§100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24,Decision No. 15,430). The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).

Respondent did not comply with the regulation because the director did not afford petitioner an opportunity to present evidence supporting Anisa’s residency before issuing the March 21, 2013 final determination letter. However, after issuing this determination letter, Anisa was permitted to remain in school until April 1, 2013 and the director and the assistant superintendent held a residency conference, on March 26, 2013, to permit petitioner, Anisa’s mother and others to supply proof of Anisa’s residency. I remind respondent of its obligation to provide such opportunity before rendering a final residency determination, in accordance with §100.2(y).

In addition, I note that respondent’s final determination letter fails to state any basis for the determination that petitioner, Anisa’s mother and Anisa are not district residents. The letter merely asserts that respondent has determined that they are not district residents, without referencing the basis for that conclusion, whether it be surveillance evidence or documentation submitted, a combination thereof or some other ground. Petitioner must be afforded sufficient information regarding the basis for the decision to initiate a meaningful challenge to respondent’s residency determination. Respondent’s failure to provide petitioner

with any basis for its determination violates his right to procedural due process as well as the requirements of 8NYCRR §100.2(y). I admonish respondent to comply with such requirements in the future (Appeal of Whittaker, 52 Ed Dept Rep, Decision No. 16,424, Appeal of Daniels, 37 id. 557,Decision No. 13,926; Appeal of Ogden, 37 id. 141, Decision No. 13,826).

Nonetheless, since the matter is now before me and petitioner has had ample opportunity to present evidence in support of his claim, I will address 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 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 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 §3202is 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 SchoolDist., 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).

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 Polynice, 48 Ed DeptRep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773). 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 Polynice, 48 Ed Dept Rep490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773).

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 Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On the record before me, there is no evidence that Anisa’s mother has relinquished total and permanent custody and control of her to petitioner. Thus, I find that petitioner has failed to rebut the presumption that Anisa resides with her mother.

Moreover, the record is silent with respect to whether petitioner has assumed any or all financial responsibility for Anisa. Without this information, it is impossible to determine whether there has been a total and permanent transfer of custody and control of Anisa to petitioner. Thus, based on the totality of the record, I am unable to find that respondent’s decision was arbitrary or capricious.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner has the right to reapply for admission to respondent’s schools on his stepdaughter’s behalf at any time, particularly if her living situation does in fact change, and to submit any documentary evidence, including, but not limited to, court orders, for respondent’s consideration, pursuant to 8 NYCRR§100.2(y).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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