Appeal of CHRISTINE VINCENT, on behalf of her daughter TAHJEE NORMAN, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,724

(March 20, 2015)

Bond, Schoeneck & King, PLLC, attorneys for respondent, E. Katherine Hajjar, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent” or “district”) that her daughter, Tahjee, is not a district resident.  The appeal must be dismissed.

Petitioner unsuccessfully appealed an earlier determination by respondent that Tahjee was not a district resident and was to be excluded from district schools during the 2013-2014 school year (Appeal of Vincent, 54 Ed Dept Rep, Decision No. 16,630) (“Vincent I”).  Based on the record before me in Vincent I, I found that petitioner had not met her burden of establishing physical presence and intent to reside in the district (see Appeal of Vincent, 54 Ed Dept Rep, Decision No. 16,630).  To the extent my decision in Vincent I sets forth a discussion of the background, relevant facts and law, I will not repeat them here.  As noted by respondent, I also dismissed a related appeal on similar grounds in which another individual also claimed to reside at the instant petitioner’s mother’s in-district address (Appeal of Norman, 54 Ed Dept Rep, Decision No. 16,629).

The record reflects that petitioner again presented Tahjee for enrollment for the 2014-2015 school year.  In addition, respondent states that petitioner also presented her son Kameron, for enrollment in the district.  As in Vincent I, petitioner and her mother again submitted “Visiting Family” and “Host” statements, respectively.  The record indicates that respondent requires that such forms be completed as part of its process of annual reauthorization of “host family” relationships,[1] to ensure that all children in district schools are bona fide residents of the district.  On the Visiting Family form, petitioner again listed her “prior” address as one outside the district (the “Bronx address”) and her mother’s in-district address as the home where she and her children moved on a permanent basis as of July 2011.[2]

Respondent conducted a home visit to petitioner’s mother’s in-district address on August 25, 2014 to verify petitioner’s residence.  The Attendance Teacher (“teacher”) conducting the visit found neither petitioner nor Tahjee at home and petitioner’s mother told her that petitioner was at work and Tahjee was out with her aunt.  The teacher’s affidavit states that the only other person at home at the time of the visit was Kameron.  The teacher found that “[w]hile there were infant’s toys and a car seat in the living room, there were no toys, clothes, school items or anything else that indicated that either a twelve-year-old girl or an eight-year-old boy lives or spends any significant amount of time at” the in-district address.

By letter dated September 3, 2014, the Director of Pupil Services (“director”) informed petitioner that the district had completed its investigation and concluded that the children do not reside at the in-district address.  The letter further informed petitioner that Tahjee and Kameron are not eligible to attend the district’s schools and should be registered in the district in which petitioner resides.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 18, 2014.

Petition claims that she and Tahjee reside at the in-district address with Tahjee’s grandmother, uncle, and brother.  Petitioner states that Tahjee has resided within the district for two years and two months and does not reside at any other location.  Petitioner further states that she provides support for Tahjee including financial support, food, clothing and other necessary items and has contact with Tahjee every day.  In support of her residency claim, petitioner submits a copy of what appears to be a credit card offer dated August 25, 2014, a cell phone bill dated September 1, 2014, and a notice of unpaid parking violation from the New York City Department of Finance dated August 13, 2014 – addressed to her at the in-district address – as well as a television bill in her mother’s name at the in-district address dated August 6, 2014 and four handwritten receipts indicating that petitioner’s mother paid rent in cash for the in-district address for the months of March through June 2014.

Petitioner requests a determination that Tahjee is a resident of the district and is entitled to attend its schools without the payment of tuition, as well as such other relief as the Commissioner deems just and proper.

Respondent contends that the appeal should be dismissed because its determination of non-residency was not arbitrary and capricious, and because petitioner has not met her burden of demonstrating school district residence.

Education Law §3202(1) provides, in pertinent part, as follows:

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).

On the record before me, I find that petitioner has failed to meet her burden of proving that she and Tahjee reside in respondent’s district.  Although the cell phone bill, credit card offer, and notice of unpaid parking violation reflect her mother’s in-district address, I am unable to find that they are dispositive of petitioner’s residency and/or establish her physical presence or intent to remain in respondent’s district (see e.g., Appeal of Whitehead, 52 Ed Dept Rep, Decision No. 16,448; Appeal of Williams, 51 id., Decision No. 16,302).  This is particularly true where, as here, it is undisputed that petitioner’s mother resides at the in-district address which is supported by evidence submitted by petitioner (i.e., the handwritten receipts indicating that petitioner’s mother paid rent in cash for the in-district address and the television bill in her mother’s name at the address).  Similarly, in Vincent I, I noted that the rent receipts and television bill submitted there indicated, at most, that petitioner’s mother lives at the in-district address.  Further, while petitioner’s documentary evidence indicates that she uses her mother’s in-district address as her mailing address, it is not dispositive of petitioner’s residency.  I also note that, while petitioner submitted the parking violation notice, she did not submit copies of her driver’s license and/or vehicle registration, as the notice states that the violation was issued to a vehicle registered in her name.

On the other hand, respondent’s evidence includes the teacher’s affidavit relating to the home visit noted above, as well as the director’s affidavit stating that it is “highly significant” that the petition only appeals respondent’s residency determination with respect to Tahjee but does not appeal respondent’s residency determination with respect to Kameron, despite respondent’s contention that “[p]etitioner presented him for enrollment in one of the [s]chool [d]istrict’s elementary schools and [sic] this past August claiming that he also lives with her and Tahjee at” the in-district address.  The director’s affidavit also states that she “verified that Kameron is actually enrolled and currently attending public elementary school in the Bronx” (emphasis deleted) and that petitioner’s only verified residence has been the Bronx address.  The director further states that “[t]he fact that Kameron is enrolled and actually attending school in the Bronx suggests that [p]etitioner still lives in the Bronx and not in New Rochelle.”  Finally, the director’s affidavit states that after investigating petitioner’s residence at the in-district address “this summer and for nearly two years,” she has concluded that while petitioner’s mother “may babysit Kameron and/or Tahjee while [p]etitioner is at work;” while petitioner and her children “may spend family time” at the in-district address; and while petitioner “may have her mail sent” to the in-district address, the director has “seen no compelling evidence of [p]etitioner’s bona fide residence, temporary or otherwise,” at the in-district address.  Petitioner submits no reply to rebut or otherwise explain respondent’s evidence.

On the record before me, I find that petitioner’s evidence is insufficient to meet her burden of proving her claim of residency and that respondent’s determination was not arbitrary or capricious.

Although petitioner does not raise this issue and it does not affect the outcome of the appeal, I note that, while the record contains what appears to be a copy of respondent’s September 3, 2014 final determination letter, such letter does not comply with §100.2(y) of the Commissioner’s regulations.  Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).  In this case, the record contains no indication that sufficient written notice was sent to petitioner.  Therefore, while I have reviewed petitioner’s documentation and find that she has not carried her burden of proof, I remind respondent of its obligation to fully comply with §100.2(y) of the Commissioner’s regulations.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her children’s behalf, should circumstances change, and to present information bearing on her and her children’s residency for respondent’s consideration as set forth in 8 NYCRR §100.2(y).

THE APPEAL IS DISMISSED.

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