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Decision No. 16,927

Appeal of TESHA MYERS and SHAWN MCCOY, on behalf of their daughter LELANI MCCOY, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,927

(July 19, 2016)

The Law Offices of Derell D. Wilson, P.C., attorneys for petitioners, Derell D. Wilson, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Baldwin Union Free School District (“respondent board”) that their daughter is not a resident of the district.  The appeal must be dismissed.

The record indicates that, on May 12, 2011, petitioners submitted a registration questionnaire to enroll their daughter, Lelani McCoy (“Lelani”), in respondent’s schools for the 2011-2012 school year.[1]  On the questionnaire, petitioners’ stated that Lelani lived with them in Baldwin, New York (“in-district address”).  In support of the registration questionnaire, petitioners submitted copies of utility bills, a mortgage statement, and petitioner Myers’ driver’s license.  Based upon the information submitted, Lelani was enrolled in respondent’s schools in September 2011.

In November 2015, respondent received a request to enroll two students from a different family who also claimed to live at the in-district address.  In support of the enrollment request for the two students, a residential lease signed by petitioner McCoy, as landlord of the in-district address, was submitted.  Thereafter, respondent commenced an investigation into petitioners’ residency, which included obtaining petitioners’ credit reports and Department of Motor Vehicles (“DMV”) records, as well as conducting surveillance at the in-district address and an address in Uniondale listed on petitioner Myers’ driver’s license (“out-of-district address”).  The district conducted surveillance at both the in-district and out-of-district addresses on the mornings of November 25 and 30, and December 1, 2, and 3, 2015.  On all five mornings on which surveillance was conducted, petitioner Myers and the student were observed leaving the out-of-district address. Respondent’s surveillance evidence further indicates that the only individuals observed at the in-district address were the two students who had registered in the district in November 2015.  Petitioner McCoy’s car, for which the expired registration lists a different Uniondale address, was observed at the in-district address on each surveillance morning.

By letter dated December 9, 2015, respondent’s director of pupil services (“director”) notified petitioners that Lelani’s residency was in question and provided them with an opportunity to meet to discuss Lelani’s residency.  On December 18, 2015, petitioners met with the director and respondent’s district registrar to discuss Lelani’s residency.  At that meeting, petitioner Myers indicated that she often spends nights at the out-of-district address to care for her father, who is in poor health, and that Lelani stays there with her because petitioner McCoy works nights.  According to the director’s affidavit, petitioner McCoy stated at the meeting that Lelani goes to the in-district address after school and “sometimes” sleeps there.

By letter dated December 18, 2015, the director informed petitioners that Lelani was not eligible to attend respondent’s schools tuition-free and that she would be excluded from attendance on December 23, 2015.  This appeal ensued.  Petitioners’ request for interim relief was denied on February 11, 2016.  Subsequently, after a request for reconsideration, petitioners’ request for interim relief was granted on May 31, 2016.

Petitioners seek a determination that Lelani is a resident of respondent’s district and is entitled to attend its schools tuition-free.  Respondent contends that petitioners fail to state a claim upon which relief may be granted and maintains that petitioners have not established that the student permanently resides within the district.    

I must first address a procedural matter.  I note that petitioners submit a reply affirmation and reply memorandum of law (“submission”) in response to respondent’s opposition to petitioners’ request for interim relief.  This type of response is not a pleading included in §275.3 of the Commissioner’s regulations (see Appeal of M.W. and K.W., 55 Ed Dept Rep, Decision No. 16,903; Appeal of Y.M., 55 id., Decision No. 16,862).  Moreover, I note that petitioners are represented by counsel (cf. Appeal of Y.M., 55 Ed Dept Rep, Decision No. 16,862; Appeal of K.M., 55 id., Decision No. 16,796).  Although respondent does not object to the submission, the affirmation of service submitted by petitioners is unsigned.  Absent evidence of service of a copy of the submission upon respondent in the manner prescribed in 8 NYCRR §275.8, the contents of the submission will not be considered (see e.g. Appeal of Hitchen, 55 Ed Dept Rep, Decision No. 16,916; Appeal of L.D., 52 id., Decision No. 16,382).  Accordingly, I have not considered petitioners’ submission.

Turning to the merits, Education Law §3202(1) provides, in pertinent part, as follows:

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 §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).

For purposes of §3202(1), a person can only have one legal residence (Appeals of Moore, 49 Ed Dept Rep 158, Decision No. 15,985; Appeal of Reynolds, 41 id. 32, Decision No. 14,604).  The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

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.P., 45 Ed Dept Rep 156, Decision No. 15,288).  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.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  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 Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

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 this record, I am unable to conclude that petitioners have met their burden of proof.  According to petitioners, petitioner Myers has been providing care for her elderly father which sometimes requires her to stay at the out-of-district address.  Petitioners further assert that petitioner McCoy works evening hours and that Lelani stays with petitioner Myers at the out-of-district-address “intermittent[ly]” when necessary.  Petitioners state that they continue to reside at the in-district address and that they have no intentions to relocate at this time.  Together with their petition, petitioners submit the deed to the in-district address, indicating that petitioner McCoy owns the property, as well as affidavits from petitioner Myers’ sisters stating that she is responsible for the daily care of her father.

Additionally, the record contains documentation submitted by petitioners in support of their 2011 request to enroll Lelani in the district, including utility bills and a mortgage statement for the in-district address dated 2011.  Further, petitioner Myers’ driver’s license, which was also submitted at that time, expired in 2012 and lists the out-of-district address.  The record does not include, for example, any recent utility bills or mortgage statements for the in-district address, pictures of Lelani’s room or belongings at the in-district address, or even a copy of a current driver’s license for either petitioner listing the in-district address.

Petitioners admit that Lelani and petitioner Myers spend nights at the out-of-district address while caring for Myers’ father.  In support of this fact, petitioners submit affidavits from petitioner Myers’ two sisters which both state that Myers is responsible for the daily care of their father.  However, petitioners maintain that Lelani’s stays at the out-of-district address are “intermittent” and for child care reasons only because petitioner McCoy works at night.

Nevertheless, petitioners’ claims are contradicted by respondent’s surveillance and evidence collected during the course of its investigation.  Respondent submits documents showing multiple addresses for petitioners, including a credit report for petitioner Myers from November 2015 listing the out-of-district address as her current active address; a print-out from the DMV Registration system for petitioner Myers from November 2015 listing the out-of-district address; and a print-out from the DMV Registration system for petitioner McCoy listing another Uniondale address.  Respondent also submits a copy of a lease indicating that petitioner McCoy has rented the in-district address to another family.  Additionally, respondent includes surveillance evidence showing that, over five days of surveillance, Lelani was never observed at the in-district address, but rather, that petitioner Myers and Lelani were observed at the out-of-district address on each surveillance date.  As noted above, petitioners did not properly submit a reply to respondent’s answer or other evidence to refute respondent’s contentions.

To the extent petitioners argue that Lelani is temporarily absent from the district, I have previously held that a residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  On this record, I cannot find that petitioners have shown sufficient continuing ties to the in-district residence to characterize their absence as temporary.  It is undisputed that petitioner McCoy owns the in-district address, but as noted above, mere ownership does not confer residence status.  While respondent’s surveillance evidence is not overwhelming, the evidence offered by petitioners is insufficient to explain the discrepancy between their contention that they reside in the district and the surveillance and documentary evidence in the record indicating that petitioner Myers and Lelani reside outside the district.

On this record, petitioners have failed to carry their burden of establishing their physical presence and intent to remain in respondent’s district.  Accordingly, I will not disturb respondent’s determination that Lelani is not a district resident.

Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to the district on Lelani’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.




[1] I note that the record is inconsistent in this regard.  Petitioners indicate that Lelani has been attending respondent’s schools since September 2009.  Respondent denies petitioners assertion and submits a copy of the registration questionnaire indicating that Lelani applied for enrollment in respondent’s schools in September 2011.  However, the parties do not dispute that Lelani has been enrolled in respondent’s schools continuously since September 2011.