Appeal of ERICK CABRERA, on behalf of his son JOSE, from action of the Board of Education of the Massapequa Union Free School District regarding residency.

Decision No. 16,645

(August 7, 2014)

Guercio & Guercio, LLP, attorneys for respondent, Randy Glasser, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Board of Education of the Massapequa Union Free School District (“respondent”) that his son, Jose, is not a district resident.  The appeal must be dismissed.

On or about August 11, 2011, petitioner enrolled Jose in district schools using an in-district address.  During the 2013-2014 school year, Jose attended 11^th grade at the district’s high school.

In or about January 2014, the building registrar at the district’s high school ("building registrar”) provided the district registrar (“district registrar”) with two envelopes that had been sent by the district:  one addressed “To The Parent(s) or Guardian of Jose Roberto Cabrera”; and the other to “Jose Roberto Cabrera.” Both envelopes were mailed to the in-district address.

The following was handwritten on the first envelope, which was addressed “To The Parent(s) or Guardian of: Jose Roberto Cabrera”:  “Return to Sender,” “This person hasn’t lived at this address since December 2012 and that’s what the LL [Landlord] told me.”  The following was handwritten on the second envelope addressed to Jose Roberto Cabrera:  “Return to Sender,” “I phoned the school weeks ago to notify you I am reporting this person for using an address illegally – no such person at [the in-district address].  They have kids in your school and live elsewhere.”  Attached to these two letters was a handwritten note which stated, “I phoned your office months ago to report that the house I’ve been renting since 12/2012 is one family and no such addressee [Jose Roberto Cabrera, Student] resides here although they registered their kids in school under this address but live elsewhere.”

 

The building registrar informed the district registrar that the tenant at the in-district address had provided her with those two envelopes as well as her telephone number.

The record indicates that during the district registrar’s telephone conversation with the tenant, the tenant confirmed that she had made the handwritten notations on the two envelopes and wrote the note that was attached.  The tenant indicated that the landlord, who owns the residence at in-district address, placed a second mailbox on the front of the house so that petitioner could receive mail from the district.  The tenant further stated that she mailed back all the envelopes to the district with her notations on them.

At the end of January 2014, the district registrar received a notarized statement from the tenant stating in part that her landlord had “admitted that the family had moved but wanted to keep their child in the same district here in Massapequa although they do not live in town.” Attached to this notarized statement was a lease agreement showing that the tenant had been renting the entire house at the in-district address, since February 13, 2013.

Subsequently, the tenant texted two pictures to the district registrar’s phone.  The pictures depicted two mailboxes on the front of the in-district home:  the tenant’s mailbox and a second locked mailbox with the name “Cabrera” written on it. 

In January 2014, the district registrar also ran a motor vehicle report for both of Jose’s parents, Erick and Erica Cabrera.  Even though the report is dated May 12, 2014, the record reflects that the district registrar initially ran this report in January of 2014.  The district registrar ran the report a second time for a residency hearing held on May 13, 2014.  The results were the same on both reports, which state that Erick Cabrera’s address is in Towson, Maryland, but that his license was suspended on November 29, 2012, and that Erica Cabrera’s address is in Massapequa Park, New York, which is located in the Amityville Union Free School District (“Amityville residence).

By letter dated May 1, 2014 sent Certified Mail, Return Receipt Requested to the Amityville address, the district’s Residency Hearing Officer (“RHO”) provided notice to petitioner that a residency hearing would be held on Tuesday, May 13, 2014 at 10:00 a.m.  The letter stated that petitioner had up to and including May 12, 2014 to submit any information concerning Jose’s right to attend district schools.  The record indicates that at no time did petitioner or anyone else submit any information to the district concerning Jose’s right to attend its schools.

At approximately 10:15 a.m. on May 13, 2014, the day of the hearing, the district registrar reported to the RHO that pursuant to a telephone conversation she just had with petitioner, petitioner had advised that he would not be attending the hearing.  At the commencement of the hearing, the district registrar testified that she spoke with petitioner at approximately 10:10 a.m. the day of the hearing, wherein she informed petitioner that pursuant to the notice he received, the residency hearing regarding his son was scheduled to begin at 10:00 a.m. that day, and therefore asked him if he planned to attend, to which he replied, “no.”  Accordingly, the hearing was held without petitioner.

In addition to the district registrar, two witnesses testified at the hearing:  the tenant, who pursuant to a lease entered into on or about February 13, 2013, has and continues to live at the in-district address, and a member of the district’s investigative team that had conducted and recorded surveillance for two days at the in-district address and eight days at the Amityville address. 

The surveillance indicated that Jose was seen exiting the Amityville address premises on seven out of the eight surveillance days, and then entering his parent’s vehicle and being driven to and dropped off at the district’s high school.  On neither of the two occasions when the district’s investigative team conducted surveillance at the in-district address was Jose or either of his parents observed exiting or entering the premises.  

By letter dated May 15, 2014, the RHO advised petitioner of his decision that Jose was not a district resident.  This appeal ensued.   Petitioner’s request for interim relief was granted on June 5, 2014.

Petitioner maintains that he and his son have resided within the Amityville Union Free School District for six months.  Petitioner also maintains that he intends to reside at the in-district address for the next two years.  Petitioner requests that Jose be permitted to complete eleventh grade in respondent’s district and a determination that Jose is a resident of the “Amityville Union Free School District and is entitled to attend the school district without the payment of tuition.”

Respondent maintains that the petition should be dismissed for failure to state a claim upon which relief may be granted and that petitioner has failed to meet his burden of establishing residency within the district.

To the extent petitioner requests that Jose be permitted to complete eleventh grade in respondent’s district, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  As noted above, petitioner’s request for interim relief was granted on June 5, 2014 and the 2013-2014 school year, during which Jose attended eleventh grade in respondent’s district, has ended.  Accordingly, no further meaningful relief can be granted and the appeal is academic with respect to this claim.

The only other relief sought by petitioner is a determination that Jose is a resident of the “Amityville Union Free School District and is entitled to attend the school district without the payment of tuition.”  Although the petition is not clear, petitioner, who is not represented by counsel, appears to argue that he and Jose intend to reside at the in-district residence for the next two years.  However, petitioner has failed to carry his burden of proof with respect to this claim.

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).  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).

Petitioner has failed to meet his burden of establishing his physical presence within the district.  Petitioner admits in paragraphs “1”, “3”, “4”, and “6” of the verified petition that both he and his son are residing outside the district at the Amityville address, which he admits is located in the Amityville Union Free School District.  In addition, the Amityville address appears beneath his signature on the verified petition.  Further, in his prayer for relief, petitioner requests a determination that Jose is a resident of the Amityville Union Free School District.

Moreover, respondent has submitted substantial evidence suggesting that petitioner does not reside in the district.  Respondent conducted surveillance of the Amityville address on eight mornings between March 7 and 27, 2014.  On seven of eight occasions, the investigator observed Jose entering a vehicle and being driven to school.  On two early mornings in April the investigator surveilled the in-district address and failed to observe Jose leaving for school despite the fact that he was in school on those days.

Evidence admitted at the residency hearing establishes that, at least since on or about February 15, 2013 (the date on which the tenant leased the in-district address) petitioner has not resided at the in-district address.  In this regard, the testimony of the in-district tenant to the effect that petitioner is using a mailbox at that residence solely to receive mail and establish residency within the district is compelling.

In addition, a motor vehicle report showed that neither of Jose’s parent’s licenses listed the in-district address and Jose’s mother’s license reflected the Amityville address as her residence.

Likewise, petitioner has failed to meet his burden to demonstrate sufficient intent to reside in the district.  In the verified petition, petitioner states that Jose has resided with him outside the district for an unspecified six month period and that they intend to reside at the in-district address for the next two years.  The petition is devoid of any allegations that demonstrate petitioner’s ties to the community, his efforts to return thereto, or even a concrete and realistic plan for doing so.  A 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 for doing so (Appeal of Schmitt, 49 Ed Dept Rep 271, Decision No. 16,022; Appeal of J.V., 44 id. 421, Decision No. 15,218).  A school district cannot be expected to allow students to continue to attend its schools indefinitely based on an expressed intent to return to the district (Appeal of Schmitt, 49 Ed Dept Rep 271, Decision No. 16,022; Appeal of Weisberg, 39 id. 737, Decision No. 14,365, judgment granted dismissing petition to review, Weisberg v. Mills, et al., Sup. Ct., Albany Co., Special Term [Malone, J.], November 27, 2000, n.o.r.).   Petitioner has submitted no documentation or other evidence with his petition, nor has he submitted a reply in this appeal.  Accordingly, based on the record before me, petitioner has failed to carry his burden of proof.

Finally, respondent has requested that I declare that district regulation 5150-R(D) entitled “Residency Changes” does not apply to petitioner’s son. District regulations 5150-R(D) provides:

Students who complete eleventh grade and whose families move out of the school district prior to or during the course of the students (sic) 12th grade year may complete grade 12.  The district will not provide transportation for students who move outside of the district’s transportation measurement.

     As noted above, a stay order was granted in this appeal and Jose was permitted to attend the district’s schools throughout his eleventh grade year.  However, the issue of whether district regulation 5150-R(D)confers a right on petitioner’s son to attend respondent’s schools in twelfth grade as a non-resident was not raised by petitioner and is not properly before me in this appeal.  It is up to respondent to determine if its regulation is intended to apply to a situation in which a student was not a district resident during his entire eleventh grade year. 

     While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on his son’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