Decision No. 12,937

(June 3, 1993)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that her children, Cheryl and Samuel Blagrove, are not residents of the Sewanhaka Central High School District ("the district"). The appeal must be sustained.

On March 9, 1992, petitioner enrolled her children at the district's Floral Park Memorial High School, stating they resided with her at 105 Hendrickson Avenue, Elmont, within the district. They had previously resided outside the district in Hempstead, New York.

On May 4, 5 and 6, 1992, a district investigator monitored 105 Hendrickson Avenue, Elmont, between the hours of 7:30 a.m. and 8:00 a.m. Although both of petitioner's children attended school on those days, the investigator never observed them leaving from the Elmont address. Consequently, he recommended that the district further examine the question of petitioner's residency.

The district retained a private security firm to conduct additional surveillances. The private firm monitored 105 Hendrickson Avenue, Elmont, on May 14, May 21, October 27 and November 4, 1992 between the hours of 6:00 a.m. and 8:30 a.m. Again, although they attended school on those days, petitioner's children were not observed leaving the Elmont premises. For this reason, respondent determined that petitioner's children were not residents of the district.

On November 18, 1992, a hearing was held pursuant to '100.2(y) of the Regulations of the Commissioner of Education (8 NYCRR 100.2[y]). At the hearing, petitioner presented documentary evidence supporting her assertion of residency at the Elmont address, including an income tax report for 1991, a telephone maintenance bill, an insurance identification card and other mail addressed to her at 105 Hendrickson Avenue. Respondent submitted two reports describing the surveillances it had conducted at 105 Hendrickson Avenue. The reports state that petitioner's children were not observed leaving the Elmont address on any of the seven occasions set forth above.

In a decision dated November 30, 1992, the hearing officer concluded that petitioner's children were not residents of the district. Petitioner commenced this appeal on January 12, 1993. She requested an interim order directing respondent to maintain her children in its schools pending a decision on the merits. I granted interim relief on January 28, 1993.

Respondent contends this appeal should be dismissed as untimely. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be instituted within 30 days after the making of the decision or the performance of the act of which the petitioner complains, provided that the Commissioner may excuse a delay in commencing an appeal for good cause (8 NYCRR 275.16). Although the hearing officer's decision is dated November 30, 1992, more than 30 days before the commencement of this appeal, petitioner's children retain the right to reapply for admission to the district at any time, and then to appeal from any denial of admission (Appeal of Colas, 32 Ed Dept Rep 128; Appeal of Pinto, 30 Ed Dept Rep 374, 375). Petitioner's delay in commencing this appeal is therefore excused.

Respondent also asks me to dismiss the petition because petitioner failed to set forth her allegations in separately numbered paragraphs as required by '275.3(c) of the Regulations of the Commissioner of Education (8 NYCRR 275.3[c]). This objection must be dismissed. When a petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to the respondent (Appeal of DeGroff, 31 Ed Dept Rep 332, 334; Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519, 522). Respondent does not allege that it has been prejudiced by the petition. Indeed, respondent submitted a lengthy, detailed answer in this matter. Respondent's objection is therefore dismissed.

The hearing officer conceded that petitioner's evidence supports the contention that she resides at 105 Hendrickson Avenue, Elmont. Because the children had not been observed leaving that address, however, the hearing officer concluded,

I find the hearing officer's conclusion arbitrary and contrary to law.

The hearing officer improperly substituted "logic" for applicable provisions of law. A child's residence is presumed to be that of the parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151, 152; Appeal of Colas, 32 Ed Dept Rep 128, 131). Because the burden of proof regarding residence lies with the party alleging a change (Appeal of Gwendolyn B., supra; Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38, 40), the district was required to rebut that presumption. I find that respondent has not satisfied its burden and has not rebutted the presumption that petitioner's children reside with her.

The district's failure to observe petitioner's children coming from 105 Hendrickson Avenue, standing alone, does not establish that the children were coming to school from a different address. Even if respondent had established that the children spent time outside the district, moreover, that would not overcome the presumption that they reside with petitioner unless respondent also established that petitioner had relinquished to another both custody and control of her children (Catlin v Sobol, 77 NY2d 552; Appeal of Colas, 32 Ed Dept Rep 128, 131). There is no such evidence in the record before me.

Respondent's motivation for investigating petitioner's residency is not apparent from the record. I find this very disturbing, particularly in light of respondent's inability to produce even a scintilla of evidence that petitioner's children were not residents of the district. I recognize the district's interest in providing tuition-free education only to those students whose parents or legal guardians reside within the district (Education Law '3202[1]). In the absence of reliable indicators that a student is not a resident, however, the school district's resources must be used to provide educational services - not to pursue costly investigations. To the detriment of petitioner, her children and the taxpayers of the district, respondent demonstrated extremely poor judgment in pursuing this case. I admonish respondent in the future to handle its residency matters in a responsible, professional manner.

THE APPEAL IS SUSTAINED, and

IT IS ORDERED that the determination of the hearing officer, dated November 30, 1992, is hereby vacated, and

IT IS FURTHER ORDERED that, because respondent has failed to rebut the presumption that Cheryl and Samuel Blagrove reside within the district, it must admit them to the schools of the district on a tuition-free basis.

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