Appeal of STUDENTS SUSPECTED OF HAVING DISABILITIES, by their parent, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 16,725

(March 20, 2015)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“board” or “respondent”) that her children, Student A and Student B, are not district residents.  The appeal must be dismissed.

The record indicates that, at the time the children were initially registered for school in the district, petitioner stated that they resided with her and their father in Lynbrook, within the district.  According to respondent, the district has information indicating that the children’s father owns the Lynbrook house.  Respondent explains that it first questioned the children’s residence in December 2012 when petitioner told school personnel in the district’s special education office that she and the children were moving to Valley Stream, outside the district.  However, the children were permitted to remain in the district for the rest of that school year.

At the start of the 2013-2014 school year, respondent commenced a residency investigation.  Surveillance was conducted on three days: the afternoon of Wednesday, October 23, 2013 and the mornings of Thursday and Friday, October 24 and 25, 2013.  By letter dated October 25, 2013, respondent notified petitioner that her children would be excluded from attending school in the district beginning November 1, 2013 based upon its determination that petitioner and her children were not residents of the district.  The letter also offered petitioner the opportunity to arrange a meeting with the assistant superintendent to dispute the facts underlying the determination and to present evidence.

The residency meeting was held on November 4, 2013 and the record indicates that the children’s father did not attend.  According to respondent, petitioner stated at the meeting that she and the children’s father share physical custody of the children and the children spend 50-60 percent of their time with him in the district.  The record indicates that petitioner also stated that she was “temporarily” absent from the district due to family circumstances, explaining that the children’s father was “volatile,” and that she had an order of protection against him.  According to respondent, at the conclusion of the residency meeting, based on the district’s surveillance evidence and dearth of evidence submitted by petitioner, respondent again informed petitioner that she and her children were not residents of the district and the children would be excluded from school effective November 1, 2013.  Petitioner appealed the district’s determination to the board by letter dated November 4, 2013 and the children were readmitted during the pendency of the appeal.  By letter dated November 13, 2013, the board president informed petitioner that the board denied her appeal and that the children would be excluded from school effective November 20, 2013.  This appeal ensued. Petitioner’s request for interim relief was denied on December 11, 2013.

Petitioner asserts that her children reside within the district with their father in Lynbrook 60 percent of the time and reside with petitioner at her “temporary” address outside the district in Valley Stream 40 percent of the time.  She further states that the children have a very close relationship with their father.  Petitioner states that she and her husband are not yet legally separated or divorced but have made arrangements based on their work schedules so that petitioner drops the children off at school in the morning and the children’s father picks them up in the afternoon.  Petitioner states that the children have resided within the district for 8 years and have attended school there since kindergarten and that they have a support system comprised of friends and the school psychologist and social worker.  Further, petitioner argues that her children are not being treated fairly because of their disabilities, and that she received the letter excluding them from school following discussions about evaluating them for special education and/or reasonable accommodations under Section 504 of the Rehabilitation Act of 1973.[1]

In support of her claim, petitioner submits a copy of her current New York State driver’s license showing the Lynbrook address in the district, a letter from Student A’s psychologist recommending that he remain in the district, a Mortgage Interest Statement (IRS Form 1098) for 2012 addressed to petitioner and her husband at the Lynbrook address, and petitioner’s 2013-2016 registration renewal notice for her professional license from the State Education Department addressed to her at the Lynbrook address.

Petitioner seeks a determination that Student A and Student B are district residents entitled to attend school without the payment of tuition.

Respondent contends that petitioner failed to carry her burden of proof in demonstrating that the children are  district residents, that its residency determination was lawful and neither arbitrary nor capricious, and that the petition should be dismissed in its entirety.

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).

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).

A residence 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 residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (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).

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 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).

Respondent’s determination that petitioner’s children are not district residents is based, in large part, on the results of its surveillance.  Respondent’s investigator observed petitioner on the afternoon of October 23, 2013 picking up Student A from school.  The investigator stated that Student B was already in the vehicle “obviously” having been picked up at his school prior to arriving at Student A’s school.  Petitioner then drove to a day care center and picked up the children’s other sibling before driving to and entering the Valley Stream residence.  On the morning of October 24, 2013, respondent’s investigator observed petitioner and all three children exiting the Valley Stream residence and driving first to the day care center, where petitioner brought the children’s sibling inside.  The investigator then drove to Student A’s school where he observed Student A exit the vehicle and enter the school.  The investigator stated that Student B was not in the car at that time and “apparently” was dropped off at his school first.  Finally, on the morning of October 25, 2013, respondent’s investigator again arrived at the Valley Stream address and saw Student B come out of the house, followed by petitioner with the children’s other sibling.  They drove to the day care center and petitioner brought the children’s sibling into the building.  They then drove to an in-district bus stop and waited in the vehicle for the school bus.  Student B boarded the bus when it arrived and petitioner left.  The investigator’s report also notes that he was informed that the school sends mail to the Valley Stream address “so there is no doubt about where they are residing” and that he was informed by the school psychologist that Student A “sometimes will spend a night or two with his father” at the in-district address.

Although respondent’s surveillance evidence is not overwhelming, on this record I find that petitioner has not met her burden of proof.  The petition contains only conclusory statements that the children reside with their father 60 percent of the time and with petitioner 40 percent of the time.  The record indicates that petitioner made similar statements at the residency review hearing.  The only other evidence included in the petition are documents which appear to be intended to support petitioner’s contention that the Valley Stream address is only her “temporary” address (including her driver’s license, professional license registration renewal notice, and mortgage interest tax statement showing the Lynbrook address), but which are not dispositive of the children’s residency.

Respondent’s surveillance evidence is detailed above.  I note that the surveillance report does not document any occasions that the investigator conducted surveillance at the children’s father’s address in the district.  However, respondent asserts that “the evidence demonstrates that the students spend no time with their father at the [d]istrict address, and that the students’ father plays no role in the parenting of the students.”  Consistent with these statements, respondent notes that the children’s father did not attend the November 4, 2013 residency meeting with petitioner.  Further, respondent contends that petitioner’s statements made at the residency meeting - that she is “temporarily absent from the [d]istrict due to family circumstances,” that the children’s “father is volatile” and that petitioner had “an [o]rder of [p]rotection against him” – are inconsistent with petitioner’s statements that the children reside with their father 50-60 percent of the time.  Respondent’s surveillance evidence coupled with petitioner’s statements and other evidence is at least minimally sufficient to raise a question about the children’s residence with their father despite the conclusory statements by petitioner (see e.g. Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649).

Petitioner, on the other hand, has produced no documentary evidence that would indicate that she is only “temporarily” residing outside the district.  Beyond conclusory statements in the petition referring to the Valley Stream address as her “temporary” residence, petitioner has failed to demonstrate evidence of continuing ties to the district and her efforts to return.  Likewise, petitioner’s statements in her November 4, 2013 appeal letter to the Board of Education - “I have been very upfront [and] honest about my domestic issue with my husband [and] my living arrangement.  At this time, my legal address as well as the children’s legal address is still in Lynbrook.  My husband [and] I share custody of the children” – do not provide evidence of her continuing ties to the community and specific efforts to return to the district.  Petitioner also submits documents bearing the Lynbrook address – a driver’s license, professional license registration renewal, and mortgage interest tax statement.  However, I find these documents to have little probative value since petitioner has stated that she resided at the Lynbrook address prior to moving to the Valley Stream address.  Thus, petitioner provides no explanation or evidence of continuing ties to the community or her intent to return (see e.g. Appeal of Lup Ning Yuen, 49 Ed Dept Rep 175, Decision No. 15,989).  Furthermore, even if petitioner offers the mortgage interest tax statement as evidence of ownership of the Lynbrook address, as noted above, the mere fact that one owns property or pays taxes in the district does not prove residency.

Nor does the record contain any evidence demonstrating the children’s presence at their father’s residence or that their time is “essentially divided” between their parents’ households, other than petitioner’s conclusory statements (see e.g. Appeal of Franklin-Boyd and Graham, 45 Ed Dept Rep 33, Decision No. 15,251).  While respondent’s surveillance evidence tends to support petitioner’s statement that the children spend approximately 40 percent of their time at the Valley Stream address, it is at odds with petitioner’s statement that she drops off the children to school in the morning and her husband picks them up in the afternoon (as, for example, she was observed picking up Student A from school on the afternoon of October 23, 2013).  Petitioner has submitted no reply or other evidence to explain this inconsistency.  Furthermore, petitioner fails to present any affirmative evidence demonstrating the children’s actual presence at their father’s home (such as, for example, statements or affidavits from the children’s father or third parties) other than her own conclusory statements (see e.g. Appeal of Franklin-Boyd and Graham, 45 Ed Dept Rep 33, Decision No. 15,251).

While the evidence from both parties is far from overwhelming, petitioner bears the burden of proof.  Consequently, on this record, petitioner has not established that respondent’s decision was arbitrary or capricious (see e.g. Appeal of Finnell and Morgan, 51 Ed Dept Rep, Decision No. 16,295).

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to the district on the children’s behalf and to present any new information for respondent’s consideration.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE