Appeal of KELLY SCOTT, on behalf of her children HAILEY and RYAN, from action of the Board of Education of the Babylon Union Free School District regarding residency.

Decision No. 16,406

(August 30, 2012)

Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Babylon Union Free School District (“respondent”) that her children are not district residents.  The appeal must be dismissed.

Petitioner owns a home and property located outside the district in Central Islip, New York (“Central Islip address”).  This home consists of four bedrooms and two bathrooms and was jointly owned by petitioner and her ex-husband as their marital address.  In September 2011, petitioner was awarded exclusive title and occupancy of the Central Islip address by order of the New York State Supreme Court, Suffolk County.  Petitioner keeps her two horses, a pony, two dogs and two cats at the Central Islip address.  The home is furnished, and petitioner’s children keep possessions there.  However, petitioner alleges that she and her children have lived within the district for the past eight years at a house owned by petitioner’s mother in West Babylon, New York (“West Babylon address”).  Petitioner also alleges that her children have their own bedrooms and also keep possessions at the West Babylon address.

Petitioner’s children were enrolled in respondent’s district for the 2011-2012 school year based on their alleged residence at the West Babylon address.  On or about October 5, 2011, a member of the district’s staff reported to the superintendent that petitioner and her children may not be district residents.  The superintendent commenced a residency investigation and engaged a private investigator.  The investigator reported that the telephone at the Central Islip address was in petitioner’s name and still in service, that petitioner’s truck was registered at the West Babylon address and that petitioner used the Central Islip address, as well as the West Babylon address, with the Social Security Administration.

The investigator also conducted surveillance on six different days:  November 28, 29, 30, 2011 and January 4, 12 and 13, 2012.  The investigator reported that in the early morning hours on November 28, 29, and 30, 2011, and January 4 and 13, 2012, petitioner’s vehicle was not present at the West Babylon address but, instead, was at the Central Islip address.  On each of these mornings, the investigator observed petitioner and her children leaving the Central Islip address at approximately 7:00 a.m. and driving to the West Babylon address.  He also observed petitioner’s vehicle parked at the Central Islip address at 8:00 p.m. on the evening of January 12, 2012, and did not observe anyone departing the address by 9:00 p.m. that evening.

By letters dated January 20, 2012 and January 23, 2012, the superintendent notified petitioner that he had reasons to believe that her children were not district residents and that a residency determination meeting would be held, pursuant to §100.2(y) of the Commissioner’s regulations, on January 25, 2012.  Petitioner was also informed of her right to submit any information concerning her children’s residency. 

At the meeting, petitioner presented one page of a divorce inquest document listing her address as the West Babylon address.  The remainder of the documents presented by petitioner were related to the ownership and pending foreclosure of the Central Islip address, as well as miscellaneous pages from divorce papers reflecting certain property rights.  Petitioner testified that she lives at the West Babylon address but commutes back and forth twice a day to the Central Islip address in order to feed the animals still living on the property.

By letter dated January 27, 2012, the superintendent notified petitioner of his determination that, based upon her sworn testimony, her children could continue to attend the district’s schools.  However, the district continued its investigation and the superintendent again engaged an investigator to conduct further surveillance.  The surveillance indicated that from 11:20 p.m. on January 25, 2012 to 12:00 a.m. on January 26, 2012 and from 12:10 a.m. to 12:30 a.m. on February 7, 2012, petitioner’s vehicle was at the Central Islip address.  The investigator also reported that on January 26 and February 6, 8, 9 and 10, 2012, petitioner’s vehicle was not present at the West Babylon address in the early morning (between the hours of 4:10 a.m. and 5:15 a.m.) but was present at the Central Islip address (between the hours of 4:30 a.m. and 5:40 a.m.).  The investigator reported that on the mornings he surveilled the Central Islip address, he observed petitioner and her children leave there at approximately 7:00 a.m.

By letters dated March 2, 2012 and March 5, 2012, the superintendent again notified petitioner her children’s residency was at issue and that a further residency determination meeting would be held on March 7, 2012.

At that meeting, petitioner testified that nothing had changed regarding her children’s living arrangements since the January 25, 2012 residency meeting.  She submitted no additional documentation.

By letter dated March 7, 2012, the superintendent determined that Hailey and Ryan were not district residents.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 21, 2012.

Petitioner alleges that she and her children reside with her mother at the West Babylon address within respondent’s district.

Respondent asserts that petitioner and her children are not district residents and that its residency determination is in all respects proper.  Respondent also objects to the scope of petitioner’s reply. 

I must first address petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Address” 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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's address 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

An address is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A person’s temporary absence from a school district of address does not necessarily constitute either the establishment of a address in the district where one is temporarily located, or the abandonment of one’s permanent address (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  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 Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In support of her claim that she resides at the West Babylon address in respondent’s district, petitioner submits various documents, including credit card and auto bills, a driver’s license, Department of Motor Vehicles identification cards for Hailey and Ryan, a car registration, proof of car insurance, a judgment of divorce, health insurance documents and bank statements.  Respondent also submits documentation to support its contention that petitioner is not a district resident, including petitioner’s 2010 Family Court petition, an order of protection, 2011 foreclosure documents, a letter from petitioner’s former attorney and petitioner’s application for a School Tax Relief Program (“STAR”) exemption for the Central Islip residence.  The documentation from both parties reflects both addresses at issue herein and, thus, is not dispositive of petitioner’s claim that she resides in respondent’s district, particularly in view of the surveillance conducted by respondent over 13 dates during two separate periods.

The surveillance establishes petitioner’s physical presence at the Central Islip address on 13 different days in the early morning and/or late night hours. Petitioner explained her presence at the Central Islip address in November 2011 as necessary to care for her sick pony.  However, she provided no explanation as to why she was observed at the Central Islip address in the early morning and late evenings in late January and early February 2012.  Thus, the surveillance evidence establishes petitioner’s physical presence at the Central Islip address.

Moreover, petitioner’s claim that she is residing at the West Babylon address because her Central Islip home is the subject of a foreclosure action is unavailing.  While petitioner may be having financial difficulties, the record documentation was from 2011 and petitioner has provided no evidence that a foreclosure has actually occurred or that any such proceedings are continuing.  I also note that petitioner has provided no evidence that she has attempted to notify appropriate officials that her Central Islip property is no longer her primary residence.

Finally, although petitioner contends that she is not residing in the Central Islip address because she fears for her safety, she provides no explanation as to why this does not prevent her from spending one and a half hours each day there caring for her animals or spending nights at that address with her children.

On the totality of the record before me, I find petitioner has not met her burden of proof.  I am unable to conclude that respondent’s determination that petitioner and her children are not district residents is arbitrary, capricious or unreasonable.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her children’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.