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Decision No. 17,173

Appeal of JELICA THOMPSON, on behalf of her son SAMARI CUMMINS, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 17,173

(August 29, 2017)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel.

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle ("respondent") that her son, Samari (“the student”), is not a district resident.  The appeal must be dismissed.

Petitioner’s son, has been attending school within respondent’s district since December 2015.  Petitioner claims that she and her son moved back to New York from Texas about that time and lived at an address inside respondent’s district (“the in-district address”) along with a “guardian,” Dennis Cummins, who is the student’s grandfather, an aunt, and an uncle.  According to the petition, Mr. Cummins provides support and exercises control over the activities and behavior of her son.[1] 

It appears from the record that, in or about November 2016, petitioner signed a lease and moved to an address in the Bronx outside of respondent’s district (the “out-of-district address”).  Petitioner asserts that, although her son was listed on the lease, he only stayed there when her schedule allowed her to pick him up, but that he continued to reside at the in-district address with Mr. Cummins.  Apparently, on or about April 4, 2017, petitioner presented her driver’s license as identification to enter her son’s school to pick him up early and school security noted that it showed the Bronx address. 

Thereafter, by letter dated May 16, 2017, respondent’s director of pupil services informed petitioner that her residency was being questioned and that she should submit information prior to May 31, 2017 for consideration.  Petitioner then submitted some “host family” forms to demonstrate that she and her son lived with Mr. Cummins.  These included a “Statement of Visiting Family,” sworn to by petitioner, and a “Statement of Host Family”, sworn to by Mr. Cummins.

Subsequently, the district determined that these forms, as well as other documents submitted by petitioner, did not overcome its evidence, which included information from a real estate broker (responsible for renting the out-of-district address) stating that petitioner and the student reside at the out-of-district address under a lease that extends until October 31, 2018.  By letter dated May 31, 2017, petitioner was advised of respondent’s determination that she was not a district resident and her son was not entitled to attend respondent’s schools.  The letter stated that petitioner’s son would not be admitted to respondent’s elementary school for the 2017-2018 school year.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 5, 2017.

In a statement attached to the petition, petitioner admits that she moved into an apartment outside the district, but states that her housing situation has since changed.  She asserts that, although she “signed a lease with a family member”, her son has never left the in-district residence.  She further states that she subsequently moved back to the in-district residence due to harassment and stalking caused by a “previous relationship.”  Therefore, petitioner claims that she is again residing at the in-district address with her son and other family members.  To support this assertion, she submits bank statements from April to June 2017; a bill dated June 22, 2017; a June 7, 2017 Interim (Driver’s) License for petitioner; and her son’s June 8, 2017 New York State Identification Card.  Petitioner also submits a May 1, 2017 police report, apparently involving a verbal dispute after a “break up.”  Petitioner seeks a determination that her son is a resident of respondent’s district and is entitled to attend its schools without payment of tuition.

Respondent contends that the petition must be dismissed because petitioner has not met her burden of proof and has not established that she and her son reside in respondent’s school district.

The appeal must be dismissed.  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).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see 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).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).

In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

The documentary evidence submitted petitioner is not persuasive.  I note that petitioner’s interim driver’s license, the student’s New York State Identification Card and the bill submitted with the petition are dated after respondent questioned the student’s residency.  The bank statements bearing the in-district address are not sufficient to prove residency.[2]

Respondent has submitted evidence that the real estate broker from the management company responsible for renting the out-of-district apartment confirmed that the apartment is leased by petitioner and that petitioner and her son reside at that address.  The driver’s license that petitioner showed to a district security guard on April 4, 2017 also bore the out-of-district address.  Although respondent’s evidence is far from compelling, on this record, petitioner, who did not submit a reply, failed to adequately explain or rebut it. 

Although petitioner makes conclusory allegations that Mr. Cummins is supporting and exercising parental control over her son, she provides no evidence to corroborate such allegations.  There is no evidence in the record before me that petitioner has made a total or permanent transfer of custody or parental control of her son to Mr. Cummins.

Indeed, petitioner admits that she leased the out-of- district property and that her son is named in the lease. Moreover, she identifies that address as her residence in the May 1, 2017 police report attached to the petition.  Petitioner asserts that, in response to the harassment that was the subject of the police report, she has moved back to the in-district address.  However, she submits no evidence to support that allegation, and there is conflicting evidence in the record. 

I note that, despite petitioner’s assertion that she moved from respondent’s district and has now moved back, the dated May 19, 2017 statement of the Host Family submitted by Mr. Cummins does not include any recitation of such an occurrence.  In fact, Mr. Cummins states that petitioner and the student moved into his home in 2015 and that petitioner is living with him because she cannot afford to pay rent.  Petitioner’s May 19, 2017 Statement of Visiting Family is completely silent about any recent move from an out-of-district address to escape harassment.  Instead, she asserts that she moved into the in-district address from Texas in 2015 because she could not afford an apartment.  Petitioner has provided no explanation of why she failed to include any mention of moving back from an out-of-district address when responding to respondent’s residency investigation.  Nor does she explain her inconsistent statements that she is residing at the in-district address because she cannot afford an apartment, yet admits to leasing the out-of-district address.

Therefore, on the record before me, petitioner has failed to satisfy her burden of proving that she and her son are physically present in respondent’s district and are district residents.  Accordingly, I cannot conclude that respondent’s residency determination is arbitrary or capricious.

While the appeal must be dismissed for the above reasons, I note that petitioner has not specified the date on which she allegedly moved back to the in-district address.  It is possible that such event occurred subsequent to respondent’s residency determination. Therefore, petitioner retains the right to reapply to the school district for her son’s admission at any time, should circumstances have changed, and to present any new information or documentation for respondent’s consideration (see Appeal of Acree, 56 Ed Dept Rep, Decision No. 16,934; Appeal of Capozzi, 51 id., Decision No. 16,305).




[1] Petitioner has not submitted a Court order or other documentation to establish that Mr. Cummins is the legal guardian of the student.  It is unclear from the petition if petitioner is alleging that she has surrendered parental control over her son.


[2] I also note that the bank statements, which are for periods from April 11, 2017 to June 8, 2017 show a majority of transactions occurring in the Bronx.