Appeal of M.P., on behalf of her son J.P., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 16,684

(November 17, 2014)

Noah L. Walker, Esq., attorney for respondent

KING, Jr., Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her son, J.P., is not a district resident.  The appeal must be dismissed.

By registration form dated September 6, 2013, petitioner applied on J.P.’s behalf to enroll him in respondent’s schools.  Petitioner submitted an affidavit representing that they reside in a basement apartment in Elmont within the district (the “in-district residence”). 

By letter dated September 10, 2013, the administrative assistant to the superintendent notified petitioner that he had determined that J.P. did not reside within the district.  Petitioner appealed the district’s determination and an administrative review was held on September 13, 2013. 

Petitioner testified at the review that she and J.P. had been living in an apartment within the district for about 10 days prior to the review.  She also testified that she was separated from J.P.’s father, who lives outside the district (“out-of-district residence”), and that although J.P. has contact with his father, he lives exclusively with her.  She testified that there is no formal separation or custody agreement or court order.  The district attendance supervisor also testified that the district routinely conducts home visits on all incoming rental property registrations.  He indicated that an attendance officer conducted a home visit the evening of September 9, 2013 at the in-district residence.  He further testified that the attendance officer was informed by a man that no one by petitioner or J.P.’s name lived in the house and that only the man and his family lived at the address.  Petitioner testified that she was at school at the time of the visit and that the man may have said she did not live there because the basement should not be rented.  The administrative review officer then asked petitioner if she would be willing to accompany the district attendance supervisor to the apartment.  Petitioner responded that she keeps her home key separate from her car key and that she came to the review from work and left her home key at her office.

By letter dated September 26, 2013, respondent’s designated administrative review officer notified petitioner that J.P. would be admitted to respondent’s school on a conditional basis pending completion of a parent’s affidavit by J.P.’s father and confirmation of the physical presence of petitioner and J.P. in the district.

By letter dated October 15, 2013, the administrative assistant to the superintendent notified petitioner that J.P. was not entitled to attend the public schools of the district based on petitioner’s failure to provide a completed parent’s affidavit from J.P.’s father and failure to maintain a physical presence in the district.  The letter advised petitioner that J.P. would be excluded from the district as of October 29, 2013 and advised her of her right to appeal the decision.

Petitioner appealed and a second administrative review was held on October 29, 2013.  Petitioner and J.P.’s father were present at the review, and the father’s completed affidavit was submitted to the administrative review officer.  Although the father’s affidavit indicated that he was separated from J.P.’s mother, J.P.’s address was listed as the out-of-district residence.  However, during his testimony, the father indicated that J.P. did not live at the out-of-district residence but sometimes goes there after school or on the weekend and sleeps there approximately two to three times per week. 

A private investigator hired by respondent testified about surveillance conducted at the out-of-district residence.  The private investigator testified that he observed the out-of-district residence on 11 separate mornings in the month of October, after J.P. was admitted into the district, and saw J.P. leave the residence on nine of those mornings.  On one of the two mornings he did not see J.P. leave the residence, J.P. was reported absent from school.  The district attendance supervisor testified that he attempted to conduct another home visit to the in-district address on September 18, 2013 from 6:00 a.m. until 7:30 a.m., but that no one answered the door to the basement apartment.  The investigator testified that he contacted petitioner while still at the in-district residence and she stated that she left for work at 6:20 a.m.  He also testified that he observed the in-district residence on eight separate mornings in September and October, after J.P. was admitted into the district, and never saw J.P. leave the residence.  On one of those days, J.P. was reported absent.

By letter dated December 3, 2013, respondent’s designated review officer notified petitioner that J.P. would be excluded from the district on December 20, 2013 as she determined that his actual residence is elsewhere.  A decision by the review officer explaining in detail the basis for her determination was attached.  Among other things, she found that J.P. was physically present at his father’s residence in Queens and not at the in-district residence and that there is no evidence to support petitioner’s contention that she lives at the in-district residence.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 15, 2014.

Petitioner argues that she and J.P. reside at the in-district residence and, therefore, J.P. should be admitted to respondent’s school.  In support of her petition, petitioner submitted various documents listing her address as the in-district residence, including a lease dated December 31, 2013. 

Respondent contends that petitioner has failed to demonstrate that J.P. is a district resident, as he primarily resides with his father outside of the district.  Respondent also contends that petitioner served her petition on respondent on January 6, 2014, more than 30 days from the decision of respondent’s designated review officer.

First, I will address a procedural matter.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Respondent asserts that its final residency determination was made on December 3, 2013.  There is no evidence in the record indicating when petitioner received the determination.  As such, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be December 9, 2013.  The appeal was commenced on January 6, 2014, within 30 days thereafter and, therefore, is timely.

Nevertheless, the appeal must be dismissed on 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).

     Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

On this record, petitioner has not alleged that she and J.P.’s father have joint custody or that J.P.’s time is essentially divided between the two households.  Residency is therefore determined by the traditional test of physical presence in the district and the intent to remain there, (see Appeal of W.B., 54 Ed Dept Rep, Decision No. 16,662).  While petitioner asserts that J.P. lives exclusively with her within the district, J.P.’s father testified at the second administrative review that J.P. stays with him at the out-of-district residence two to three times per week. 

Respondent conducted extensive surveillance of both the in-district and out-of-district residences and also conducted home visits to the in-district residence. Respondent’s evidence supports the finding that J.P. lives at the out-of-district residence with his father.  The record includes testimony from a private investigator that surveillance was conducted at the out-of-district residence on 11 mornings and at the in-district residence on eight mornings.  The private investigator testified that J.P. was never seen leaving the in-district residence but was seen leaving the out-of-district residence on nine of those mornings.

The record also includes testimony that respondent attempted three home visits at the in-district residence.  Testimony during the initial administrative review revealed that during the initial in-district home visit, respondent’s attendance officer was informed that no one by petitioner or J.P.’s name lived at the in-district residence.  The record also reflects that petitioner was asked if she could go with the district attendance officer to the in-district residence after the review but petitioner responded that she did not have her house keys. 

At the second administrative review, testimony was presented that no one answered the door during the second attempted home visit.  The district attendance officer testified that even though no one answered the door, he stayed outside the residence, continuing surveillance from 6:00 a.m. until 7:30 a.m.  He contacted petitioner by phone and she stated that she left for work at 6:20 a.m. 

On September 18, 2013, petitioner met the district attendance officer at the in-district residence.  The district attendance officer’s home visit report from that day indicated that some rooms in the apartment were in disrepair and that there was no indication that a teenage boy was living there.  The district attendance officer noted that there was no clothing that would belong to a teenage boy and no computer or television.  Based on the foregoing, petitioner has not shown that she and J.P. are physically present within the district.    

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).

Although petitioner attempts to refute respondent’s evidence, I find such attempts unavailing.  Petitioner testified that the man who said she and J.P. did not live at the in-district residence may have said that because he believes the basement should not be rented.  Petitioner further testified that she was not able to accompany the district attendance supervisor to the in-district residence after the initial administrative review because she keeps her house keys separate from her car keys.  Petitioner did not offer an explanation as to how she left for work at 6:20 a.m. without the district attendance officer seeing her leave.  Petitioner did not submit any supporting evidence, such as affidavits from neighbors or others who live at the in-district residence, supporting that she and J.P. live there.

Additionally, petitioner testified that she sometimes walked with J.P. to and from school and that she sometimes takes the bus to work.  However, when questioned, her testimony revealed that she was unfamiliar with the neighborhood surrounding the in-district residence.  She was unable to specify street names and was unfamiliar with local bus stops.  She testified that it took her 45 minutes to an hour to walk from the in-district residence to the school.  However, the district attendance supervisor testified that it is a 15 to 20 minute walk. 

In support of her petition, petitioner submits documents purporting to show that her address is the in-district residence.  Two of the documents, a statement of school taxes for 2011-2012 and an unnamed report that includes headings such as: “ownership history,” “phone-records-tenants,” “title history,” and “distressed property history,” list persons other than petitioner as owning the in-district residence.  The documentation includes no information that petitioner lives at or rents the in-district residence.  She also submits an email order confirmation for internet and cable services.  However, the confirmation does not include an address at which the services will be installed.  While she does submit a residential lease, it is dated December 31, 2013 with the term of the lease beginning on January 1, 2014, both of which are after respondent’s final residency determination of December 3, 2013.  The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).  A lease agreement alone is not sufficient to show presence in the district. 

In light of the paucity of the evidence submitted by petitioner, and the fact that she provides no explanation for the surveillance evidence submitted by respondent, I cannot conclude that she has carried her burden of proof in this case. 

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