Appeal of VANESSA CASTRO, on behalf of her daughter ELIZZA NAVARRO, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 15,266

(August 5, 2005)

Ingerman Smith, LLP, attorneys for respondent, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that her daughter is not a district resident. The appeal must be dismissed.

Petitioner's daughter began attending school within respondent's district in September 2004. In March 2005, the district's residency investigator obtained information that petitioner resided outside the district in Roosevelt, New York, and his surveillance of the Roosevelt address revealed petitioner transporting her daughter from that residence to respondent's school on two mornings.

By letter dated April 6, 2005, the district offered petitioner an opportunity to meet with the district's administrative assistant for central registration and to submit information concerning her daughter's right to attend district schools. On April 18, 2005, petitioner met with the administrative assistant and the investigator. She admitted that her daughter left from the Roosevelt residence in the morning and returned there after school, but she alleged that she and her daughter were living outside the district temporarily while the basement apartment in her mother-in-law's residence in the district was being constructed. Petitioner agreed to let the administrative assistant and the investigator view the basement to verify her claim; however, they found no evidence of construction when they entered the basement living area, and petitioner admitted that the personal belongings found there did not belong to her or her daughter.

By letter dated April 19, 2005, petitioner was advised that her daughter was not entitled to attend district schools because she was not a district resident. This appeal ensued. Petitioner's request for interim relief was granted on May 9, 2005.

Petitioner asserts that she moved out of the district in approximately January 2005 on a temporary basis and that her daughter will live with her grandmother in the district until the end of the school year or until petitioner decides where to reside. Respondent contends its surveillance and petitioner's conflicting statements and documentary evidence demonstrate that petitioner and her daughter do not reside in the district.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). 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 L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365). A person's temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one's permanent residence (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757). To determine one's intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family's continuing ties to the community and their efforts to return (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). 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 (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Petitioner states that she has not surrendered her daughter's custody and control to the child's grandmother who is a district resident. Therefore, petitioner has not rebutted the presumption that her daughter resides with her. Petitioner admits that she moved outside the district in approximately January 2005. Although she alleged that the basement living area of her mother-in-law's residence was being reconstructed so she could return to the district, no construction was occurring at the site in April 2005, three months after she moved from the district. The petition also provides no evidence to support petitioner's claim that she intends to return. Therefore, based on the record before me, I am unable to conclude that petitioner is residing outside the district on a temporary basis.

In view of the foregoing, I find respondent's determination to be neither arbitrary nor capricious. Accordingly, it will not be set aside.

THE APPEAL IS DISMISSED.

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