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Decision No. 17,047

Appeal of L.T., on behalf of her son T.T., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 17,047

(February 15, 2017)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her son, T.T. (“the student”), is not a district resident.  The appeal must be dismissed.

On or about June 2012, petitioner and the student’s father enrolled their son in respondent’s schools utilizing an in-district address located on Oakley Avenue (“Oakley address”).  Respondent began an investigation into petitioner’s residency in the fall of 2013, after a letter sent to the student’s Oakley address was returned.  By letter dated, October 7, 2013, the administrative assistant to the superintendent notified petitioner that he had determined that T.T. did not reside within the district.  By letter dated October 29, 2013, petitioner appealed the district’s determination and an administrative review was held on October 30, 2013.

Petitioner testified at the review that she was separated from the student’s father, who lives outside the district in Queens, and that although he occasionally stays with his father at his Queens address pursuant to a court order, the student lives exclusively with her.  She further informed respondent for the first time that she no longer resides at the Oakley address but instead resides at a different address within respondent’s district (“in-district address”).  When asked by respondent’s administrative review officer why she did not inform respondent of her change of address, petitioner testified that when she moved on July 23, 2013, she actually moved to her mother’s home in Hempstead, which is outside of respondent’s district (“out-of-district Hempstead address”) because she was having medical issues and she was going to have surgery.  Petitioner further testified that she moved to the in-district address on August 1, 2013.

A private investigator hired by respondent testified about surveillance conducted on eight randomly-selected early morning occasions in October 2013 in which he consistently observed the student being picked up at the out-of-district Hempstead address in an automobile registered to the student’s father.  Respondent’s district attendance supervisor testified that he also conducted five separate surveillances in October 2013 during which he never observed the student exiting the in-district address or the Oakley address.

By letter dated December 5, 2013, respondent’s administrative review officer notified petitioner that the student would be excluded from the district on December 20, 2013.  A decision by the review officer explaining in detail the basis for her determination was attached.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 23, 2014.

Petitioner argues that she and the student reside at the in-district residence and, therefore, the student should be admitted to respondent’s school.  In support of her petition, petitioner submitted various documents listing her address as the in-district residence, including a lease agreement.  Petitioner maintains that she has been staying with her mother due to recent health problems but intends to reside at the in-district residence after she recovers from her surgery.

Respondent contends that its determination that petitioner is not a district resident and that the student, therefore, is not entitled to attend its schools tuition-free was not arbitrary and capricious and was in all respects proper. 

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).

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).

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).

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).

In this case, petitioner asserts that she currently stays outside the district with her mother due to recent health issues and pending her recovery from surgery.  The central question in this appeal, therefore, is whether her absence from the district is temporary.  Petitioner asserts that she is renting an apartment within respondent’s district, and, to support this claim, submits a rental agreement dated August 1, 2013, copies of receipts for rent payments, and a letter purportedly from her landlord.  However, while such documents indicate that petitioner may rent an in-district apartment, 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).

Furthermore, petitioner’s claimed intent to return to the district is insufficient to establish residency, absent evidence of substantial progress toward meeting that objective or, at the very least, a concrete and realistic plan to do so (Appeal of J.V., 44 Ed Dept Rep 421, Decision No. 15,218; Appeal of Collins, 44 id. 74, Decision No. 15,103). Petitioner submits no such evidence or plan, and her general statement of intent to return to the in-district apartment is insufficient to establish residency (Appeal of Batiz, 53 Ed Dept Rep, Decision No. 16,498). Indeed, to substantiate her claim, petitioner submits only documents purporting to rent the in-district apartment. Moreover, petitioner testified at the administrative review held on October 30, 2013 that the in-district residence is a one-room apartment with one bed that her children share and a blow-up bed that she sleeps on. Petitioner further testified that she had not yet changed her mail to the in-district residence and readily admitted that she still was not “[f]ully moved in.”  During the October 30, 2013 administrative review, petitioner did not submit any evidence substantiating her current medical condition or recent surgery that would require her to stay with her mother during the period in question, though the petition in this appeal includes as an attachment a letter from her physician dated December 19, 2013 describing her many health issues and indicating that she is still recovering from her surgery and occasionally needs help from her family.  However, while that statement corroborates petitioner’s contention that she has health problems, it does not fully explain why respondent’s surveillance never observed her children leaving for school from the in-district residence.  Petitioner has not submitted any other evidence to contradict or further refute respondent’s surveillance, which indicates that she actually resides at the Hempstead out-of-district residence.  Moreover, the record reflects that respondent’s attendance teaching assistant performed a home visit at the in-district residence on November 13, 2013 and was advised by the resident of the apartment that neither petitioner nor the student lives there.

On this record, petitioner has failed to prove that she and her children are physically present at the in-district residence and thus has failed to prove that she is a resident of respondent’s district.  She has not proven that she has established a permanent residence at the in-district residence and is only temporarily absent from that address.  While petitioner may intend to return to the district, a school district cannot be expected to allow students to continue to attend its schools indefinitely based on an expressed intent to return to the district (Appeal of Weisberg, 39 Ed Dept Rep 737, Decision No. 14,365, judgement granted dismissing petition to review, Weisberg v. Mills, et al., Sup. Ct., Albany Co., Special Term [Malone, J.], November 27, 2000, n.o.r.).

Accordingly, on this record, I am unable to conclude that petitioner has met her burden of proving that she resides in respondent’s district and I cannot conclude that respondent’s residency determination was arbitrary, capricious or unreasonable.

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