Appeal of KAYDIAN JACKSON, on behalf of her children NARUKA and JERDIAN FORD, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,640

(August 7, 2014)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

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

Petitioner resides within respondent’s district and the children’s aunt resides outside the district in Roosevelt, New York.  In or about May 2013, the district’s office for central registration received information that petitioner’s children were residing outside the district in Roosevelt.  As a result, the district initiated surveillance of the two children.  The surveillance revealed that in the early morning hours of May 16 and 31, 2013, petitioner’s children were observed walking from the aunt’s out-of-district residence to petitioner’s in-district residence.

By letter dated August 29, 2013, petitioner was informed that her children were not district residents and were not eligible to attend district schools for the 2013-2014 school year.

Thereafter, petitioner and the children’s father appealed the district’s determination and requested a residency review hearing which was held on September 3, 2013.  At the hearing, petitioner indicated that she, Naruka and Jerdian reside in the basement level of her cousin’s house within the district.  In addition, petitioner and the children’s father both stated that the children stayed overnight at the aunt’s out-of-district residence an average of three nights during the school week when petitioner works.

By letter dated September 3, 2013, petitioner was informed that the district’s initial residency determination remained in place and that her children would be excluded from district schools for the 2013-2014 school year.  This appeal ensued.  Petitioner’s request for interim relief was granted on September 25, 2013.

Petitioner maintains that her children reside with her at her in-district residence.

Respondent maintains that the appeal must be dismissed for failure to state a claim upon which relief may be granted and for improper service.  Respondent alleges that petitioner has not established that her children reside within the district.

Respondent alleges that service was improper.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioner’s affidavit of services indicates that service was made on Gregory Singer, Administrative Assistant for Central Registration.  In challenging service, respondent asserts only that petitioner failed to serve the district clerk.  Respondent admits that the notice and petition were served on the district’s administrative assistant for central registration (“assistant”) but does not assert that the assistant was not authorized to accept service.  Therefore, on this record, I decline to dismiss the appeal for improper service.

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).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

  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).

For the purpose of this residency determination, Naruka and Jerdian’s residence is presumed to be that of their mother in the district, and respondent has failed to rebut that presumption (Caitlin 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).

Although the surveillance indicates that, on the two surveillance dates, petitioner’s children were observed leaving the out-of-district address where the children’s aunt apparently lives and walking to petitioner’s in-district residence, at the residency hearing petitioner explained that Naruka and Jerdian sleep over at their aunt’s house because she sometimes works nights.  Respondent has not provided any evidence to contradict petitioner’s explanation.  Moreover, respondent has not asserted or established that petitioner has transferred custody and control of Naruka and Jerdian to their aunt.

Respondent based its residency determination solely upon the surveillance of Naruka and Jerdian and made no determination that petitioner did not reside in the district.  Just as a showing of a child’s physical presence in a school district, standing alone and without regard to the retention of parental control, is not sufficient to rebut the presumption that a child resides with their parent (Caitlin v. Sobol, 77 NY2d 552, 561; Appeal of Franzoso, 53 Ed Dept Rep, Decision No. 16,540), respondent’s surveillance evidence showing Naruka and Jerdian’s physical presence outside the district does not rebut the presumption that they reside with petitioner.  Absent a finding of transfer of parental custody and control from petitioner to the children’s aunt, Naruka and Jerdian’s residence remains with petitioner in respondent’s district.  Accordingly, respondent’s determination that they are not district residents is unsupported by the record, and the appeal must be sustained (see Appeal of Franzoso, 53 Ed Dept Rep, Decision No. 16,540.)

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit petitioner’s children, Naruka and Jerdian, to school in the Uniondale Union Free School District without payment of tuition.

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