Decision No. 17,467
Appeal of STUDENTS WITH DISABILITIES, by their parent, from action of the Board of Education of the Goshen Central School District regarding residency.
Decision No. 17,467
(July 31, 2018)
Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Goshen Central School District (“respondent”) that her children (“the students”), are not district residents. The appeal must be sustained.
The record indicates that the students have been attending school in respondent’s district since September 2015. On or about August 14, 2017, petitioner sent an email to respondent indicating that she and the students had relocated to another residence within the district (“the new in-district address”). Approximately one week later, petitioner completed a change of address form and submitted a copy of a lease agreement for a residence owned by her fiancé’s father, a bank statement and a completed post office change of address form, each bearing the new in-district address, as proof of residency. Petitioner also indicated that all mail should be sent to a P.O. Box address.
In September 2017, the superintendent was informed by a community member that petitioner and the students did not reside within respondent’s district and that petitioner had been driving the students to and from school from New Jersey. Moreover, according to the superintendent, the school community was “buzzing” about the fact that petitioner and the students did not reside within respondent’s district.
Subsequently, in October 2017, a residency investigation was commenced, and surveillance was conducted on four non-consecutive school days. In the early morning hours of October 3 and 12, 2017, the new in-district address was surveilled and neither petitioner nor the students were observed. In the early morning hours of October 6, 10 and 12, 2017 the investigator surveilled a possible residence located in New Jersey which, according to the investigator’s data base inquiries, was associated with petitioner. On two of these occasions, the investigator observed petitioner and the students exit the New Jersey residence and drive to school. Neither petitioner nor the students were observed at the New Jersey residence on the third occasion. In the afternoon of October 6, 2017, the investigator observed petitioner and the students depart from respondent’s high school and arrive at the New Jersey residence.
By letter dated November 20, 2017, the superintendent informed petitioner of his determination that the students were not district residents and would be excluded from school effective January 29, 2018. This appeal ensued. Petitioner’s request for interim relief was granted on December 28, 2017.
Petitioner contends that she and the students are district residents. She maintains that she and the students were required to relocate to the new in-district address due to a conflict between her fiancé and his sister. Petitioner maintains that she and the students frequently travel to New Jersey to care for her elderly mother, who is ill. Petitioner also maintains that the students’ father, who resides in New Jersey, has shared custody and that she also travels to and from New Jersey to accommodate his visitation schedule.
Respondent contends that petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested.
Education Law §3202(1) provides, in pertinent part:
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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). “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 Powell, 57 Ed Dept Rep, Decision No. 17,320). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Initally, I must address respondent’s compliance with 8 NYCRR §100.2(y). 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. The record reflects that petitioner was not provided the requisite opportunity to present information prior to the November 20, 2017 exclusion of the students from school. Therefore, I find that respondent failed to comply with the procedures of §100.2(y). I remind respondent of the need to comply with such procedures in the future.
Here, although the evidence from both parties is far from overwhelming, I find that petitioner has met her burden of proving that she resides within respondent’s district. Petitioner submits a copy of a lease for the new in-district address and mail addressed to her at the new in-district address. As noted above, although the copy of the lease agreement submitted by petitioner is unsigned, respondent admits that it received a signed copy. Petitioner has also set forth a reasonable explanation for her and the students’ presence in New Jersey on the dates of surveillance; namely, that she and her family regularly traveled there to care for petitioner’s ill mother who resides in New Jersey, and to accommodate the students’ father’s court-ordered visitation schedule.
Respondent’s evidence fails to overcome petitioner’s evidentiary showing. Respondent’s four days of surveillance in October 2017 depicted petitioner and the students leaving from the New Jersey residence twice and returning to the New Jersey residence once. This evidence is limited and inconclusive; moreover, it is consistent with petitioner’s explanation that she and the students visited her sick mother in New Jersey. Thus, while entitled to some weight, I do not find that this evidence overcomes petitioner’s evidence and explanation for her presence in New Jersey.
Respondent also submits two pieces of mail which were sent to petitioner in November and December 2017, respectively, which were returned. The November 2017 mailing sent by the district contains the following notations: “returned to sender” and “attempted – not known.” The December 2017 mailing, sent by the district’s attorneys contains the following notations: “return to sender” “[a]ttempted - [n]ot [k]nown,” and “unable to forward.” Petitioner did not submit a reply, and the return of these documents is not otherwise explained in the record. However, the superintendent indicates in an affidavit that when petitioner moved into the new in-district address, she “indicated that all mail should be sent to a Post Office Box that she had opened.” The record is otherwise silent as to the nature of the new in-district address and whether mail can, in fact, be delivered at the new in-district address. Without more, I cannot find that the returned mail is dispositive, especially where petitioner specifically directed the district to send all mail to a P.O. Box which she had opened. Accordingly, based on the totality of the evidence, I find that respondent’s determination is arbitrary and capricious and must be set aside.
Finally, I note that nothing in this decision should be construed to limit respondent’s authority to investigate further to determine if petitioner and the students actually reside at the new in-district address. If respondent remains concerned that petitioner and the students are not district residents, it may collect further evidence through, for example, additional surveillance, a home visit, or other means such as affidavits (see e.g. Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933). In the interim, respondent must admit the students to its schools.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent shall admit the students to the schools of the district without the payment of tuition.
END OF FILE
 Respondent acknowledges in its answer that it received a signed copy of the lease agreement. However, the copy of the lease agreement contained in the record appears to be missing pages and is not signed.
 Although the letter identified the exclusion date as “January 29, 2017,” it is evident upon review of the record that this was a typographical error.