Appeal of CINDY LAWRENCE, on behalf of her son DILLANO BINDA, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 15,606

(July 12, 2007)

Neville W. McFarlane, Esq., attorney for petitioner

Ingerman, Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that her son, Dillano, is not a district resident.  The appeal must be dismissed.

Petitioner claims that she and Dillano reside at School Drive in Baldwin, New York (“the Baldwin address”) within respondent’s district.  Respondent began an investigation into petitioner’s residency in November 2006.  Respondent’s investigator conducted surveillance of a residence located at 106th Avenue in Jamaica, New York (“the Jamaica address”), outside of respondent’s district, between November 6 and November 18, 2006.  On five mornings during this period, the investigator observed petitioner drive Dillano from the out-of-district residence to respondent’s Grand Avenue Elementary School.  On two other days, one being Election Day and the other being a Saturday, the investigator observed petitioner’s car in the driveway of the out-of-district residence.

By letter dated November 15, 2006, respondent’s superintendent advised petitioner of the district’s determination that petitioner and Dillano were not district residents, and provided petitioner with an opportunity to respond.  Following a registration review conference held on November 30, 2006, respondent made a final determination in the matter, finding that petitioner and Dillano were not district residents.  This appeal ensued and petitioner’s request for interim relief was granted on December 20, 2006.

Petitioner claims that she rents a house at the Baldwin address from a relative, Rose Clarke, and that this is her permanent residence.  She states that her husband, from whom she has been separated, resides at the Jamaica address.  Petitioner admits that she and Dillano stay overnight at the Jamaica address.  However, she claims that she and her husband are currently trying to reconcile their marriage and intend to move back to the Baldwin address.  Respondent claims that petitioner and Dillano reside outside the district and consequently Dillano does not have the right to attend the district’s schools free of charge.

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 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).

The issue in this appeal is whether or not petitioner’s absence from the Baldwin address is temporary.  Petitioner admits that she, her children and her husband sleep at the Jamaica address and in a written statement signed by petitioner on November 30, 2006, she stated that the children’s father lives at the Jamaica address and that they “share the children’s residence.”  Petitioner claims that she and her children eat dinner at the Baldwin address and then return to the Jamaica address in the evenings because it is more convenient for her to drop off her daughter at daycare in Queens, New York.  Although petitioner’s and Dillano’s presence at the Jamaica residence is not necessarily inconsistent with petitioner’s claim that they stay with her husband at night, the frequency and consistency of their presence at the Jamaica address compels the conclusion that the child is not a district resident.  Petitioner also fails to explain why her vehicle was observed at the Jamaica address on a holiday and a weekend when her purported reason for staying at the Jamaica address was to drive her daughter to daycare.

Petitioner’s proof of her residency at the Baldwin address is also unpersuasive.  While petitioner submits a copy of a purported lease, she presents no cancelled checks

or receipts establishing that she paid rent.  Petitioner also submits an insurance identification card, a water

bill, a utility bill and her October and November paychecks with the Baldwin address listed.  However, the water bill and the utility bill are addressed to Rose Clarke and not

petitioner.[1]  In addition, at the registration review conference, petitioner produced her New York State driver’s license issued in July 2006, which reflects an address in Staten Island.  In light of the foregoing, I find that petitioner has not provided adequate documentation to substantiate her claim that she resides at the Baldwin address.

Moreover, while petitioner expresses an intent to return to the district, she provides no evidence of continuing ties to the community nor does she provide any timeline as to when she will return to the Baldwin address.  Petitioner’s claimed intent to return to the district is insufficient to establish residency, absent evidence of substantial progress toward meeting that objective or at the very least, a concrete and realistic plan to do so (Appeal of J.V., 44 Ed Dept Rep 421, Decision No. 15,218; Appeal of Collins, 44 id., Decision No. 15,103).  Since petitioner has failed to submit a realistic plan for returning to the district residence, I find that she has failed to prove that she is a resident of respondent’s district.

Petitioner also requests that I consider her most recent correspondence dated April 23, 2007, wherein a Notice of Readiness for inspection of the Baldwin address was sent to a representative of respondent’s district.  This evidence was not before respondent at the time of its determination.  Therefore, I find that respondent’s decision was not arbitrary and capricious based on the evidence before it.  If the petitioner has new evidence that she wants respondent to consider, petitioner may reapply for residency at any time.  

THE APPEAL IS DISMISSED.

END OF FILE

[1] Respondent claims that in a verified Affidavit of Residency signed by  petitioner and Rose Clarke in 2004, Rose Clarke was identified as petitioner’s mother and the owner of the Baldwin address.  However, in a conflicting statement signed by petitioner on November 29, 2006, petitioner stated that Rose Clarke was her aunt.  Also, in April 2006, respondent was notified by a company that reports home sales to the district that the Baldwin address was sold to a new owner.