Decision No. 14,214

(September 30, 1999)

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that her two daughters, Lianne and Jennifer, are not district residents. The appeal must be sustained.

Petitioner applied to have Lianne and Jennifer admitted into the schools of respondent's district in September 1997. Petitioner reported her address to be 152 Waldorf Avenue, Elmont, NY, which is within respondent's district. As the owner of 152 Waldorf Avenue, petitioner's mother filed with respondent an affidavit, indicating: "My daughter Laura Chan is living with me sharing living expenses due to my disability." Petitioner's mother listed herself, petitioner and petitioner's two daughters, Lianne and Jennifer, as the individuals living at 152 Waldorf Avenue.

Respondent admitted petitioner's daughters to its schools and they attended in 1997-98. Halfway through the following school year, by letter dated December 21, 1998, respondent's assistant to the superintendent advised petitioner of the determination that Lianne and Jennifer were not entitled to attend the schools of the district on the basis of "parental residence out-of-district." By letter postmarked January 8, 1999, petitioner responded that she and her two daughters lived within the district at 152 Waldorf Avenue. Respondent accepted this response as an appeal of the initial residency determination. A hearing was held on January 11, 1999 before respondent's administrative review officer. By letter dated February 1, 1999, the administrative review officer affirmed the initial determination of the assistant to the superintendent. A full report by the administrative review officer was issued to petitioner on February 4, 1999. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on March 22, 1999.

Petitioner contends that she and her two daughters live with her mother in her mother's home at 152 Waldorf Avenue in Elmont, New York, which is within respondent's district. Petitioner seeks a determination that her daughters are district residents and entitled to attend respondent's schools tuition free. Respondent contends that its determination that petitioner's daughters are not district residents is rational and supported by the record, and not arbitrary, capricious or unreasonable.

Education Law "3202(1) provides, in pertinent part:

The purpose of the 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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675). For purposes of Education Law "3202, a person can have only one residence; a residence is not lost until it is abandoned and another is established through action and intent (Appeal of a Student with a Disability, 36 Ed Dept Rep 113, Decision No. 13,674). Residence for purposes of Education Law "3202 is established based on two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Wynter, 36 Ed Dept Rep 192, Decision No. 13,698; Appeal of Kapell, 36 id. 107, Decision No. 13,672). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151, Decision No. 12,787).

Petitioner states that she has resided with her mother and her daughters at 152 Waldorf Avenue since 1997, and does not reside anywhere else. She states that she is separated from her husband and does not know where he currently resides and that she solely supports herself and her daughters.

Petitioner states that in 1997, prior to moving in with her mother, she was forced to sell her home. She testified that she stores her furniture from the house in an apartment in Flushing, Queens, but that she keeps her clothing at 152 Waldorf Avenue where she resides. She testified that intermittently, as a convenience, she stays overnight at the apartment in Flushing. For example, she stayed overnight at the Flushing apartment when she did not have an automobile because it was more convenient to commute to work from Flushing than from Elmont. She also testified that when she was sick she stayed at the Flushing apartment in order not to expose her mother to the illness because her mother is on dialysis. Petitioner states that her permanent residence is 152 Waldorf Avenue, not the Flushing address.

Petitioner's mother testified at the hearing that her daughter and granddaughters reside with her at 152 Waldorf Avenue. She testified that her daughter visited the Flushing apartment to check on her belongings. In this appeal, petitioner's mother provides the following explanation for the living arrangement: "I have become legally blind and am a dialysis patient. Due to my disabilities I selfishly wanted them to reside with me."

At the hearing, petitioner submitted documentary evidence concerning her residency within the district, including a drivers license issued on November 4, 1998, a vehicle registration issued on December 15, 1998, an insurance card issued on December 15, 1998, an automobile registration issued on December 15, 1998, and a letter dated December 31, 1998 from a premium finance company. These documents indicate that petitioner's residence is 152 Waldorf Avenue, Elmont.

Respondent contends that petitioner lacks credibility because during the hearing she changed her story concerning who has lived at the Flushing address. Petitioner contends that the administrative review officer misconstrued her answers. A recorded transcript was taken of the hearing, but except for a fragment of the transcript consisting of 19 lines, respondent has not provided a copy of the recorded transcript. On the record before me, I am unable to determine whether petitioner contradicted her testimony during the course of the hearing because the recorded transcript is not in the record.

In large part, respondent bases its determination on the surveillance of a private investigator. The investigator observed petitioner leaving the apartment at the Flushing address on two mornings in one week in December 1998, and two mornings in the following week. On each morning, petitioner was observed by the investigator waiting for and boarding a bus. The investigator also testified that he spoke to a neighbor who stated that petitioner and her husband lived in the building. Respondent also bases its determination on a Netscape report that identified Laura Chan's address as the Flushing address. Finally, respondent relies on petitioner's own testimony that during October, November and December of 1998, when she did not have an automobile, she stayed in Flushing because it was easier to commute to work.

I do not find this evidence to be inconsistent with petitioner's contention that she resides permanently at 152 Waldorf Avenue, and uses the Flushing apartment intermittently as a convenience. The fact that petitioner was observed on four mornings in December leaving the Flushing address is certainly not dispositive of the question of residency. Respondent never conducted surveillance at 152 Waldorf Avenue to determine whether petitioner resided there. There is no evidence in the record that petitioner's daughters reside daily anywhere other than at 152 Waldorf Avenue. The testimony of the investigator that he spoke to a neighbor who stated that petitioner and her husband lived in the building is also not conclusive. Respondent produces no evidence from the neighbor himself. The neighbor's purported statement does not contradict petitioner's use of the apartment on an intermittent basis, as a convenience. There is no evidence that petitioner's husband is currently living at the Flushing address, and petitioner denies that her husband resides there. The Netscape report is not reliable evidence for determining residency. It does not identify the time period which it covers and appears to be based on telephone number listings.

Respondent states that petitioner testified that she stayed at the apartment in Flushing during October, November and December 1998, when she did not have an automobile because it was easier to commute to work from Flushing. The record is unclear as to how many days in these months she stayed overnight in Flushing. In any case, the fact that petitioner stayed at the apartment in Flushing during October, November and December of 1998, when she did not have an automobile, is not inconsistent with petitioner's contention that she resides permanently at 152 Waldorf Avenue and uses the Flushing apartment intermittently, as a convenience.

On this record, I do not find that respondent had a sufficient factual basis to determine that petitioner resides outside of the district. The record does not support respondent's decision to deny Lianne and Jennifer entitlement to attend its schools. Accordingly, it must be set aside. I note that when petitioner's request for interim relief was granted on March 22, 1999, Lianne was in twelfth grade. The record reveals that Lianne graduated from respondent's schools and received a Regents high school diploma in June 1999. Therefore, Lianne's continued attendance in respondent's schools is not at issue, and the order in this decision shall only address Jennifer's entitlement to attend respondent's schools without the payment of tuition.

I have reviewed respondent's remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Jennifer Chan to attend school in the Sewanhaka Central High School district without the payment of tuition.

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