Decision No. 17,145
Appeal of J.M., on behalf of her son T.G., from action of the Board of Education of the Westhampton Beach Union Free School District regarding residency.
Decision No. 17,145
(August 14, 2017)
The Law Offices of Douglas A. Spencer, PLLC, attorneys for petitioner, Douglas A. Spencer, Esq., of counsel
Kevin A. Seaman, Esq., attorney for respondent
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Westhampton Beach Union Free School District (“respondent” or “board”) that her son, T.G., is not a district resident. The appeal must be dismissed.
Petitioner’s son attended fifth grade in respondent’s district during the 2016-2017 school year. The record indicates that T.G. had been enrolled in respondent’s schools since 2011.
In September 2016, according to petitioner, she was unable to maintain her then-current residence in the district (“first in-district address”) due to her economic circumstances at the time, “rendering both her and her child without a fixed, regular, and adequate night-time residence.” As a result, petitioner states that for a one-month period, she and T.G. lived separately; she with friends and T.G. with his paternal grandparents at their residence within the geographical boundaries of the district (“second in-district address”). Petitioner further states that the district was notified of her circumstances as well as T.G.’s change of address but that no issues were raised nor did the district refer petitioner to the district’s homeless liaison or advise her of any rights attendant to her living arrangements and circumstances pursuant to 8 NYCRR §100.2(x).
Petitioner goes on to state that after the initial one-month period of living separately, petitioner and T.G. moved in with her aunt who also lives within the geographical boundaries of the district (“third in-district address”). Petitioner explains that T.G. resided at the third in-district address “full-time” and petitioner resided there “a majority of the time during the week” except when her “employment required otherwise.” Again, petitioner states that she advised the district of the address change and submitted the appropriate forms and proof of residency.
After a month of living with her aunt, amid “growing concerns” about sufficient space and petitioner’s inability to obtain adequate housing for herself and T.G., petitioner states that she obtained “temporary housing outside the [d]istrict” for herself which was “insufficient” for both petitioner and T.G., and that T.G. remained at petitioner’s aunt’s residence in the district. Petitioner states that at this point, petitioner’s aunt “assumed custody and control” of T.G. from petitioner, while petitioner “remained housed outside the [d]istrict” and that the district was again notified of the change but raised no issues.
Respondent generally denies all of petitioner’s stated facts to this point, stating that petitioner has supplied a number of addresses over the years since the student first enrolled in 2011, aided, it believes “by relatives possessing a number of in-[d]istrict residences.” According to an affidavit submitted by the principal of the Westhampton Beach Elementary School (“principal”), petitioner submitted a change of address form in January 2016 for the move from the first in-district address to the second in-district address, rather than in September 2016 as stated by petitioner. The principal’s affidavit further states that she was informed by T.G.’s teacher in January 2016 that the student told her that he did not live in the district but lived in Riverhead. Further, the principal avers that in September 2016, the student’s teacher at that time (who lived across the street from the second in-district address) advised the principal that “she had never observed [T.G.’s] presence” there. Further, the principal avers that the bus driver servicing the stop adjacent to the second in-district address advised her that he had never picked up T.G. at his designated bus stop.
Thereafter, the record indicates that the district commissioned a surveillance report on November 18, 2016. The surveillance report included with an affidavit of respondent’s superintendent indicates that surveillance was conducted on the mornings of November 21, 22, 23, and 28, 2016 and on the late afternoons of December 2, 9, and 15, 2016 at the third in-district address (which according to petitioner was the address at which T.G. was living with petitioner’s aunt at that time). The report also includes surveillance observations from the mornings of December 16 and 20, 2016 and January 3, 2017 at an address outside the district in Moriches. The surveillance report concluded that T.G. did not live in the district but lived in Moriches. In addition, the principal’s affidavit stated that the surveillance report indicated that T.G. was “dropped off in the early morning and picked-up at the bus stop servicing” the third in-district address “in the afternoon.”
The record indicates that on February 8, 2017, petitioner and the superintendent spoke by phone on the topic of T.G.’s residency, although petitioner and respondent’s accounts of this conversation differ. Petitioner contends that she explained her circumstances to the superintendent in response to his inquiries about the status of her and T.G.’s residency. The superintendent states that he provided petitioner with a detailed description of the evidence (including the surveillance) and offered her an opportunity to respond. In any event, by letter to petitioner dated February 8, 2017, the superintendent stated that based on their discussion that morning as well as “information obtained through an extensive investigation,” he had determined that neither petitioner nor T.G. were residents of the district and that T.G. would be excluded from respondent’s schools at the close of the school day on February 17, 2017.
Subsequently, the superintendent states that he left voicemail messages for petitioner on February 13 and 15, 2017 offering her an opportunity to meet, and petitioner states that she agreed to meet on February 16, 2017 regarding residency. The superintendent states that he had to cancel this meeting and his secretary offered to reschedule but petitioner refused. Petitioner states that there was no attempt to reschedule by the superintendent’s office.
Petitioner states that she received the February 8, 2017 exclusion letter on February 16, 2017. Respondent states that this is reflective of petitioner’s failure to pick up her mail from her post office box and not having a “viable [d]istrict residence at which mail can be delivered”. On February 17, 2017, the superintendent states that he left a voicemail for petitioner again offering to reschedule the residency meeting and asking for an email address to which he could send a copy of the surveillance report but that petitioner never called back. Petitioner states that T.G. was excluded on February 17, 2017 in accordance with the school district’s February 8, 2017 determination leaving him unable to attend school in the district or elsewhere given his residency in respondent’s district.
This appeal ensued. Petitioner’s request for interim relief was granted on March 17, 2017.
Petitioner contends that the district’s decision with respect to residency is inaccurate. Petitioner also states that while she remains housed outside the district, her child remains a resident of respondent’s district residing with petitioner’s aunt who has assumed custody and control of T.G. at her home within the geographical boundaries of the district. Petitioner argues that T.G. is a resident of the district and that the surveillance evidence does not establish otherwise. Petitioner alleges that numerous procedural defects resulted in a denial of the minimal degree of due process afforded under 8 NYCRR §100.2(y) and rendered respondent’s determination a nullity. Petitioner requests: an order annulling respondent’s decision that T.G. is not a resident of the district; an order directing the admission of T.G. in the district on a tuition-free basis; and an order directing the provision of make-up instruction at a rate of two hours per day, 10 hours per week, for the missed instruction due to T.G.’s exclusion from the district.
Respondent contends that the surveillance evidence fully corroborates the anecdotal information received by the district that petitioner and T.G. do not reside in the district and further that the petition itself concedes that petitioner does not reside in the district with T.G. Respondent also argues that it fully complied with the terms of 8 NYCRR §100.2(y) by informing petitioner verbally and in writing of the basis upon which the district determined that neither petitioner nor T.G. resided within the district, by advising petitioner of the date of exclusion, and informing petitioner of her opportunity to appeal the determination to the Commissioner. Respondent requests a finding that the district is entitled to the payment of tuition for educating T.G. as a non-resident of the district. Respondent argues that petitioner failed to establish any basis for claimed McKinney-Vento status. Respondent requests that the petition be denied in all respects and respondent’s determination be upheld.
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).
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 Rep 490, 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 Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).
Petitioner has failed to meet that burden here. Petitioner admits that she “remains housed outside the [d]istrict” and asserts that T.G. “remains a resident of [respondent’s district] residing with [petitioner’s aunt] who has assumed custody and control [of T.G.].” However, beyond her conclusory statements, petitioner submits no evidence that there has been a total and permanent transfer of custody and control of T.G. to her aunt residing in the district. Without any such evidence, T.G. is presumed to reside with petitioner at her residence outside the district. I also note that petitioner, and not petitioner’s aunt, is the petitioner in this appeal, which she brings on T.G.’s behalf. This belies her assertion that custody and control has been transferred (Appeal of Irving, 55 Ed Dept Rep, Decision No. 16,854).
In addition, I find petitioner’s claim of homelessness to be inconsistent with her claim that she has surrendered parental control of T.G. to her aunt, as well as contradicted by respondent’s surveillance which petitioner failed to rebut or explain by submission of a reply (see Appeal of Delacruz, 43 Ed Dept Rep 85, Decision No. 14,928).
To the extent petitioner seeks relief on her claim regarding alternate instruction I find such claim academic. 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 her son has been so classified (Appeal of Hentschel, 56 Ed Dept Rep, Decision No. 16,969; Appeal of T.W., 54 id., Decision No. 16,728; Appeal of V.C., 45 id. 571, Decision No. 15,419).
With respect to respondent’s compliance with procedures for making residency determinations, I note that 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).
As petitioner asserts, there is no evidence in the record that respondent notified petitioner of the procedures to obtain a review of the district’s determination, within the district, as required by 8 NYCRR §100.2(y)(6). Respondent’s February 8, 2017 letter, serving as the final determination, appears to be the only written notice issued and does not include instructions on how to appeal the determination to the board nor does it request additional documentation from petitioner or offer an opportunity for a meeting. The superintendent’s affidavit indicates that such an offer was made to petitioner in a telephone call on February 8, 2017 prior to issuance of the letter and in voice messages to petitioner on February 13 and 15, 2017. However, with regard to the February 16, 2017 meeting that both parties agreed was scheduled on the residency issue and then cancelled, each party indicates that it was the other party who either failed or refused to reschedule, although petitioner does not submit a reply. While respondent’s February 8, 2017 letter partially complied with the requirements of 8 NYCRR §100.2(y)(6) by providing notice of petitioner’s right to appeal to the Commissioner, it does not state the specific basis for the determination or recite the documentation or other evidence on which respondent relies. Nevertheless, petitioner was able to address respondent’s claims and assertions regarding her residency in this appeal and, thus, I cannot conclude in this instance that petitioner was prejudiced by respondent’s omissions. However, respondent must ensure that it fully complies with all the requirements of 8 NYCRR §100.2(y) in the future (see Appeal of Hentschel, 56 Ed Dept Rep, Decision No. 16,969; Appeal of L.B.-S., 52 id., Decision No. 16,403).
Finally, with respect to respondent’s request for tuition, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737). Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The record also indicates that the second in-district address was given as T.G.’s father’s address on T.G.’s 2011 Student Registration Form.
 The petition also refers to this individual as T.G.’s “maternal [a]unt.”
 The affidavit includes a copy of the change of address form and a registration affidavit notarized on January 29, 2016 stating that T.G. would begin residing at the second in-district address on January 3, 2016.
 I note that petitioner alleges that respondent was advised in September 2016 of circumstances which caused her to be homeless, and yet she was not referred to the district’s homeless liaison or apprised of her rights under the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., ”McKinney-Vento”). This is denied by respondent, and while the record indicates that petitioner filed a change of address form for the second in-district residence, there is no proof in the record to corroborate her allegation that respondent was apprised of the circumstances that led to the change of address, which she claims indicate the possibility of homelessness. On this record, I am unable to conclude that respondent improperly failed to refer petitioner to its homeless liaison or apprise her of her rights under McKinney-Vento.