Appeal of PATRICIA FRANZOSO, on behalf of her children PETER and PATRICIA, from action of the Board of Education of the Hendrick Hudson Central School District regarding residency.

Decision No. 16,540

(August 29, 2013)

Keane & Beane, P.C., attorneys for respondent, Suzanne E.Volpe, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges the determination of the Board of Education of the Hendrick Hudson Central School District (“respondent”) that her children, Peter and Patricia, are not district residents. The appeal must be sustained.

During the 2012-2013 school year, Peter and Patricia attended respondent’s schools, registered from an address in Verplanck, New York, within respondent’s school district(“Verplanck address”). On or about February 25, 2013, respondent’s district clerk received a letter from a community member reporting that petitioner’s children resided outside the district in Croton-on-Hudson, New York(“out-of-district address”). Thereafter, respondent’s district clerk retained a private investigator to conduct residency investigation of petitioner’s children.

On or about March 8, 2013, the district received an investigative report which concluded that petitioner’s children were not district residents. Specifically, the investigator conducted surveillance of the out-of-district address on five dates. On March 1, 2013, at approximately 7:15 a.m., the investigator observed Peter leave that address in a vehicle registered to petitioner at the Verplanck address. The investigator lost sight of the vehicle but later observed it parked at respondent’s high school. During the early morning hours on March 4, 5, 6and 7, respondent’s investigator observed both of petitioner’s children leave the out-of-district address in the same vehicle. On March 4 and 7, she observed the vehicle later in the morning in respondent’s high school parking lot.

By letter dated March 11, 2013, respondent’s residency officer informed petitioner of her initial determination that petitioner was not a district resident and that Peter and Patricia, therefore, would not be entitled to a tuition-free education. Petitioner was afforded an opportunity to provide evidence by March 18, 2013 in support of her children’s residency in the district.

On or about March 18, 2013, petitioner provided the residency officer with various documents reflecting the Verplanck address within the district. Specifically, petitioner provided copies of receipts dated December 2012and February 2013 for oil and rent, an invoice from Mavis Discount Tire, a residential lease agreement dated October8, 2012 (with a handwritten notation that Peter, Patricia and two others reside there with petitioner), a district “Affidavit of Landlord” dated October 9, 2012, and copies of Interim Licenses for Peter and Patricia, dated March 15,2013. Petitioner also provided a New York State Insurance Identification card for Joseph B. Calabro, apparently her oldest son, indicating that he lives at the out-of-district address.

After receiving petitioner’s information, the residency officer again contacted the district’s investigator and requested additional surveillance. On or about April 10, 2013, the district received a second investigative report which again concluded that Peter and Patricia did not reside within the district. The report included surveillance on March 21, 22 and April 2, 3, 4 and5, 2013 on which dates petitioner’s children were observed leaving the out-of-district address between 7:30 a.m. and 8:00 a.m. in a vehicle registered to Joseph Calabro.

By letter dated April 15, 2013, respondent’s residency officer issued a final determination that, based on the surveillance, petitioner’s children were not district residents and would be excluded from school, effective April 22, 2013. This appeal ensued. Petitioner’s request for interim relief was granted on April 24, 2013.

Petitioner contends that she and her children reside at the Verplanck address within respondent’s district and that her children were temporarily staying with her oldest son at the out-of-district address. Respondent maintains that the appeal must be dismissed because the petition is not verified, and that the record supports its determination that petitioner’s children are not district residents.

I will first address the procedural issue raised by respondent. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified. When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46id. 260, Decision 15,501).

I note that the petition filed with my Office of Counsel contains a verification. Although the verification states that the “attached documents” are verified and the county is not noted, the verification is signed and notarized. I have repeatedly held that where, as here, petitioners are proceeding without representation by counsel, a liberal interpretation of the rules is appropriate, particularly when there is no evidence of prejudice to the opposing party (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Christie, 40id. 412, Decision No. 14,514). Accordingly, I decline to dismiss the appeal on this procedural basis.

Turning to 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 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).

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 Dept Rep 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).

For the purpose of this residency determination, Peterand Patricia’s residence is presumed to be that of their mother, petitioner, in the district, and respondent has failed to rebut that presumption (Caitlin v. Sobol, 155AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

Although the surveillance indicates that petitioner’s children were leaving for school during the period of the surveillance from the out-of-district address where petitioner’s oldest son, Joseph, apparently lives, respondent acknowledges that petitioner resides in the district at the Verplanck address. One of the documents attached to the petition is a statement by petitioner explaining that she had Peter and Patricia temporarily sleep over at their brother’s and sister’s house because she was staying in Kingston with another son who was seriously ill. Respondent has not provided any evidence to contradict petitioner’s explanation. Moreover, respondent has not asserted or established that petitioner has transferred custody and control of Peter and Patricia to Joseph.

Respondent based its residency determination solely upon the surveillance of Peter and Patricia and made no determination that petitioner did not reside in the district. Just as a showing of a child’s physical presence in a school district, standing alone and without regard to the retention of parental control, is not sufficient to rebut the presumption that a child resides with their parent (Caitlin v. Sobol, 77 NY2d 552, 561) respondent’s surveillance evidence showing Peter and Patricia’s physical presence outside the district does not rebut the presumption that they reside with petitioner. Absent a finding of transfer of parental custody and control from petitioner to Joseph at his out-of-district residence, Peter and Patricia’s residence remains with petitioner in the district. Accordingly, respondent’s determination that they are not district residents is unsupported by the record, and the appeal must be sustained.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit petitioner’s children, Peter and Patricia, to school in the Hendrick Hudson Central School District without the payment of tuition.

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