Decision No. 16,969
Appeal of JOSEPH A. HENTSCHEL, SR., on behalf of his son JOSEPH A. HENTSCHEL, JR., from action of the Board of Education of the Deer Park Union Free School District, Superintendent Eva J. Demyen and James S. Petti, attendance teacher, regarding residency.
Decision No. 16,969
(September 1, 2016)
The Law Offices of Douglas A. Spencer, PLLC, attorneys for petitioner, Douglas A. Spencer, Esq., of counsel
Frazer & Feldman, LLP, attorneys for respondent board of education, Christie R. Jacobson, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Deer Park Union Free School District (“respondent” or “board”), Superintendent Eva J. Demyen (“superintendent”) and attendance teacher James S. Petti (“Petti”) that his son, Joseph A. Hentschel, Jr. (“student”), is not a district resident. The appeal must be dismissed.
Petitioner’s son was enrolled in respondent’s district in 2006. According to the registration information, petitioner and the student’s mother lived within respondent’s district in a home owned by petitioner’s parents (“in-district address”). Thereafter, the student’s mother moved out of the district to an address in Bay Shore, apparently in the Brentwood Union Free School District (“out-of-district address”). According to petitioner and the student’s mother, there is no formal custody agreement between them regarding the student.
Petitioner’s son attended school in respondent’s district during the 2014-2015 school year. In October 2014, respondent commenced an investigation of the student’s residency based on information it received from the middle school attendance secretary. According to respondent, on October 14, 2014, the attendance secretary had a telephone conversation with the student’s mother regarding the student’s absence wherein, the attendance secretary reported, the mother stated in words or substance that the student lives with her full time.
Thereafter, Petti conducted surveillance of the out-of-district address on seven mornings, including October 15, 16, 17 and November 7, 10, 12 and 17, 2014. With the exception of November 7, when the student was absent, Petti observed the student and his mother leave the out-of-district address between 7:00 a.m. and 8:00 a.m. and drive to respondent’s middle school where the student was dropped off. Petti did not observe the student at the out-of–district address on November 7. No surveillance was conducted at petitioner’s in-district address. Apparently, Petti suspended further investigation of the student’s residency to allow him to investigate other matters and the student was permitted to remain in school.
In the spring of 2015, Petti continued surveillance regarding the student’s residency. He conducted surveillance of the out-of-district address on ten days (April 22, 27 and 28, May 4, 7, 8, 14, 18, 26 and June 4, 2015). The student was absent from school on six of those dates. On April 27 and 28 and on May 7 and 8, Petti observed the student and his mother leave the out-of-district address between 7:00 a.m. and 8:00 a.m. and drive to respondent’s middle school where the student was dropped off. Petti did not observe the student at the out-of-district address on the six days that he was absent from school. No surveillance was conducted at petitioner’s in-district address. Because it was late in the school year, Petti decided to suspend the residency investigation.
According to respondent, on September 25, 2015, an attendance office secretary called petitioner to request confirmation of the student’s absence that day. The student’s mother called back and spoke with the attendance secretary who purportedly asked why the mother was contacting the district about the student, rather than petitioner. According to respondent, the attendance secretary reported that the mother replied in words or substance that petitioner’s child “lives with her” and that she should be called for anything – including absences. It appears that the attendance secretary reported this information to Petti who then spoke to the student’s mother regarding the student’s residency status. Petti asserts that, during the conversation, he explained that the district had surveillance evidence and other information indicating that the student resides at the out-of-district address. Petti states that he reminded the student’s mother that she had admitted to various district employees in words or substance that the student lives with her “full-time.” In response, the student’s mother stated that the student only spends “some of the time” at the out-of-district address with her, and that she drives him to school in the morning. According to Petti, she also stated that petitioner leaves for work every day at 3:00 a.m. and she does not want the student staying by himself that early every morning.
During the fall of 2015, Petti conducted further surveillance of the out-of-district address on 21 days (September 16, 21, 22, 25, 29, October 2, 5, 6, 9, 13, 21, 23, 28, 29, and November 6, 10, 11, 13, 17, 18, and 19). With the exception of nine dates on which the student was either late to or absent from school, Petti observed the student and his mother leave the out-of-district address between 6:45 a.m. and 7:00 a.m. and drive to respondent’s high school where the student was dropped off. Petti reports that the student’s mother notified the school on the days he was absent but that he did not observe the student at the out-of-district address on the days he was absent or late to school. No surveillance was conducted at petitioner’s in-district address.
By letter dated November 26, 2015, Petti notified petitioner and the student’s mother of his determination that the student was not a district resident and would be excluded from respondent’s schools effective December 11, 2015. The letter stated, “If you wish to dispute this issue, you may provide a letter of appeal in writing to the [board of education].”
By letter dated December 7, 2015, petitioner’s attorney wrote to “appeal from the Board’s determination” and asserted that the district had denied petitioner and the student due process in relation to the November 26, 2015 determination of non-residency. Apparently, only the student’s birth certificate was attached to the letter. The letter requested “proper notice and a proper 30-day appeal period.” It requested that the student “not be dropped from enrollment ... until said appeal is determined.” According to respondent, its counsel contacted petitioner’s attorney by telephone to remind him of petitioner’s right to appeal to the board of education “in the manner set forth in the District’s November 26, 2015 letter.” By email dated December 9, 2015 Petti wrote to the student’s mother stating, “We are yet to hear from you regarding any appeal ... If you wish to appeal our decision, Mr. Hentshel and yourself may submit a letter of appeal to the [board of education] no later than the Friday deadline, December 11, 2015.”
By letter dated December 9, 2015, petitioner’s attorney wrote to respondent stating that petitioner was appealing “from the Board’s determination contained in the letter dated November 25, 2015 ...” The letter further stated, “Please advise us of the date when this appeal will be heard by the Board of Education, and your procedures for said appeal.”
By letter dated December 16, 2015, following its meeting on December 15, 2015, respondent notified petitioner that it upheld the determination that petitioner’s son was not a district resident. Neither petitioner nor his attorney attended the meeting. There is no indication that petitioner was notified of the date of the board meeting.
By letter dated January 5, 2016, the student’s parents wrote to respondent indicating that it had been their understanding that they would be able to attend the board meeting and “argue our case.” They set forth information regarding their custody arrangement and indicated that, since receiving respondent’s determination, they “have since taken further measures to eliminate any doubt of [the student’s] right to attend Deer Park Public Schools. Since receiving the letter, [the student] has spent every school night sleeping in Deer Park with his father.” They sought reconsideration of respondent’s December 16, 2015 residency determination. In response, by letter dated January 8, 2016, the superintendent wrote to the student’s parents attaching another copy of respondent’s December 16, 2015 residency determination and noting that the “next step is an appeal to the Commissioner of Education.” This appeal ensued. Petitioner’s request for interim relief was granted on January 22, 2016.
Although petitioner is challenging respondent’s December 16, 2015 residency determination, he also asserts that, since that determination, circumstances have changed. Petitioner asserts that the student now resides with him permanently, on a full-time basis, with after-school, day-time visitation with the student’s mother several times a week and before and after school care provided by his parents (the student’s grandparents).
With respect to his appeal of respondent’s December 16, 2015 residency determination, petitioner asserts that he and the student’s mother did not have a formal custody agreement but made arrangements based on their work schedules so that the student stayed with his mother when petitioner is at work on weekdays between 5:00 a.m. and 5:00 p.m. when she was not working. Petitioner maintains that the student stayed with him during the week on those evenings when his mother was working. Petitioner states that, due to his work schedule, the student’s mother picked the student up on weekdays in the morning and took him to school, picked him up after school and remained with him until the end of petitioner’s work day. On evenings when the student’s mother worked, petitioner picked the student up from the mother’s after he finished work. Petitioner contends that the student shared time equally between his mother and petitioner. He also contends that he and the student’s mother share educational and medical decision-making.
Petitioner also maintains that he was not afforded an opportunity to present additional material or evidence to respondent regarding his appeal of the district’s residency determination. Petitioner seeks annulment of respondent’s determination that his son is not a district resident. He also seeks an order directing respondent to provide his son with “make up instruction” for the time the student was excluded from school.
Respondent alleges that petitioner has failed to establish a clear legal right to the relief requested. Respondent asserts that the surveillance and anecdotal reports from district staff support its determination that the student is not a district resident and, therefore, its determination is rational and neither arbitrary nor capricious. Respondent asserts that it provided petitioner with an opportunity to submit information in support of the student’s residency in accordance with section 100.2(y) of the Commissioner’s regulations. Finally, respondent maintains that the student is not entitled to compensatory education.
First, I must address several procedural matters. 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). Therefore, while I have reviewed petitioner’s memorandum of law, I have not considered those portions containing new allegations or exhibits that are not part of the pleadings.
With respect to respondent’s superintendent and Petti, named in the appeal, I note that there is no evidence that either was served with a copy of the notice of petition and petition, as required by §275.8(a) of the Commissioner’s regulations. Moreover, the petition sets forth no claims against them individually. Therefore, the appeal must be dismissed as against them.
The appeal is also academic at this juncture and must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).
It appears from the record that the circumstances underlying the student’s residency status have changed since respondent’s December 16, 2015 determination. Petitioner asserts that, subsequent to receiving that decision on December 18, 2015, he and the student’s mother revised their custody arrangement so the student lives permanently with petitioner, with after-school, day-time visitation with the student’s mother several times a week and before and after school care provided by petitioner’s parents (the student’s grandparents). He also submits with his reply an affidavit from his mother averring that, subsequent to commencing this appeal, on or about January 25, 2016, he and the student moved into another property that she owns within the district.
According to respondent, on or about February 25, 2016, petitioner submitted new registration documents to the district, including a landlord’s affidavit at the new address within the district, listing petitioner, the student and a third individual as tenants. It appears that respondent refused to admit petitioner’s son based on the information underlying its December 16, 2015 residency decision and some additional surveillance that Petti conducted subsequent to being informed of the change in petitioner’s custody arrangement with the student’s mother, and that the student was now residing full time with petitioner. Specifically, Petti conducted additional surveillance of the first in-district address on five days (February 3, 4, 10, 11 and 12, 2016) and reported that he did not observe anyone leave the house, yet petitioner’s son was present in school on each of those days. However, that surveillance took place after the date that petitioner claims he and his son moved to the other address in the district.
Petitioner’s attempt to register his son on February 25, 2016 based on changed circumstances, including his claim that his son now resides with him permanently, that the visitation schedule with the student’s mother has changed, and that he and his son live at a different address in the district renders respondent’s December 16, 2015 determination academic. Any determination by respondent that petitioner’s son does not reside in the district, given petitioner’s assertion of changed circumstances, requires compliance with §100.2(y) of the Commissioner’s regulations. There is no indication that petitioner was informed of the February surveillance or permitted to provide further information regarding the claimed new circumstances regarding his son’s residency in the district prior to respondent’s refusal to admit the student in February 2016. Respondent must comply with the requirements of §100.2(y) prior to making any residency determination relating to petitioner’s asserted changed circumstances, and petitioner’s son may not be denied admission to its schools until a determination made in compliance with Commissioner’s regulations is rendered.
In any event, petitioner’s appeal from respondent’s December 16, 2015 determination is academic and must be dismissed as moot.
For the benefit of the parties, however, I will comment on respondent’s December 16, 2015 residency determination.
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).
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).
Petitioner asserts that he and the student’s mother are separated and that, during the relevant time period, the student lived in each household half the time. He submits no legal separation agreement or custody order and there is no indication that such documents exist. Therefore, as noted above, residency is to be determined by the traditional test of physical presence in the district and intent to remain there (see Appeal of Balaj, 53 Ed Dept Rep, Decision No. 16,585).
Respondent’s December 16, 2015 residency determination was based on anecdotal evidence from district employees and on the surveillance conducted by Petti. While I acknowledge respondent’s credibility concerns based on reported statement’s purportedly made by the student’s mother, I also note that respondent’s surveillance reports are completely devoid of any surveillance of petitioner’s in-district address at that time. Moreover, with one three-day exception, the surveillance of the mother’s out-of-district address does not include more than two consecutive days of observing the student during any given week. The observations do not conflict with petitioner’s explanation regarding the sharing of custody and visitation. Even assuming arguendo that credibility is a consideration, on this record the complete absence of any observation of petitioner’s in-district address during any of the three relevant surveillances does not support respondent’s conclusion that the student was not physically present in its district with his father the majority of the time. Accordingly, I cannot find respondent’s determination was sufficiently supported by the record.
The appeal is also academic to the extent petitioner seeks relief on his claim regarding alternate instruction. Petitioner’s request for interim relief was granted, the student returned to school and the school year has ended. I also note that, generally, compensatory education services are available only to students classified as having a disability and petitioner submits no evidence that his son has been so classified (Appeal of T.W., 54 Ed Dept Rep, Decision No. 16,728; Appeal of V.C., 45 id. 571, Decision No. 15,419).
Finally, I am compelled to comment on respondent’s compliance with the procedures set forth at §100.2(y) of the Commissioner’s regulations for making residency determinations, generally. As noted, prior to making a final residency decision, a parent or guardian must be afforded an opportunity to present information regarding the residency issue. Here, Petti’s November 26, 2015 letter informed petitioner of his decision that his son was not a district resident and notified him of his right to provide a “letter of appeal” to respondent. Subsequent communications from district staff and its attorney also referenced petitioner’s right to appeal to respondent. An email to the student’s mother states, “If you wish to appeal ... [petitioner] and yourself may submit a letter of appeal to the [board of education] no later than ... December 11, 2015.” Although petitioner was informed that he could appeal the November 26, 2015 decision to respondent, the notifications from the district never clearly articulate that the appeal was an opportunity for petitioner to submit additional information to respondent for consideration of his son’s residency. While respondent may have technically complied with the requirements of §100.2(y), I encourage it to consider clarifying the language used in its notice of initial determination to more closely mirror the language of the regulation.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Although petitioner named the superintendent and Petti as respondents, as discussed below he did not submit proof of service on the superintendent or Petti in accordance with §275.8(a) of the Commissioner’s regulations, and the district’s counsel has appeared only on behalf of the board of education. Accordingly, all references to “respondent” herein refer to respondent board.
 The board met to consider petitioner’s residency on December 15, 2015 and rendered its determination by letter dated December 16, 2015.
 Although that affidavit is not pertinent to a review of respondent’s December 16, 2015 residency determination and has not been considered in relation thereto, because it addresses matters that occurred after the initiation of this appeal and has bearing on whether the appeal is academic, I have considered it and respondent’s sur-reply thereto.