Appeal of TAKIESHA POWELL, on behalf of her children Tyiesha and Tyshawn, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,320

(February 12, 2018)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent board”) that her children (“the students”) are not district residents.  The appeal must be dismissed.

The record indicates that petitioner’s two children have been enrolled in the respondent’s schools since kindergarten.  At the time of enrollment, it was represented that the students lived with their mother in Baldwin, New York (the “in-district address”).  During the 2015-2016 school year, the district conducted an investigation into the residency of the students based on a report from one of the student’s teachers that he may not reside at the in-district address.

As part of this investigation, respondent obtained petitioner’s credit history report, which listed an address in Hempstead, New York (“out-of-district address”).  The investigation also included surveillance at both the in-district and out-of-district addresses which was conducted over six school days, from October 20, 2015 to October 27, 2015.  On five days, the students were observed leaving the out-of-district address in the morning, before school.  The students were observed being driven by petitioner from the out-of-district address and dropped off at the in-district address.  On the sixth day of surveillance, the students were observed coming out of the in-district address; surveillance reports indicate that petitioner’s vehicle was observed at the out-of-district address on that day.

Based on this investigation, by letter dated October 28, 2015, respondent’s director of pupil services (“director”) notified petitioner that the students’ residency was in question and provided her with an opportunity to meet to discuss their residency on November 5, 2015.

On November 5, 2015, the director and the district’s registrar spoke with petitioner by phone.  During this phone call, petitioner represented that her mother lived at the out-of-district address and often helped out with the students while petitioner worked and attended school.  Respondent indicates that, during that conversation, petitioner stated that the students sleep at the out-of-district address more often than at the in-district address.  Based on the results of its investigation and information received during the phone call, the director determined that the students were not residents of the district and indicated that they would be excluded from the district effective November 13, 2015.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 1, 2015.

Petitioner asserts that the students live with her and her parents (the students’ grandparents) at the in-district address.  Thus, petitioner argues, the students are entitled to attend the district’s schools tuition-free.  Petitioner further asserts in her petition that the students “at times, depending on the hour of the evening,” sleep at the out-of-district address where their father lives in order to “maintain healthy communication and close-knit relationships with both parents.”

Respondent contends that petitioner fails to state a claim upon which relief may be granted and that the students reside outside the district with petitioner and, thus, the students were properly excluded from respondent’s schools.

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).  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).

In support of her residence within the district, petitioner submits several documents with her petition which list petitioner’s address as her parents’ in-district address.  These documents include a bank statement and an income tax receipt with petitioner’s name bearing the in-district address.  Additionally, the petition includes a property tax bill and utility bills in petitioner’s father’s name, both of which bear the in-district address.  In contrast, respondent provides a credit report bearing the out-of-district address and surveillance evidence at both addresses indicating that the students spend a majority of their time at the out-of-district address.  Petitioner has not submitted any evidence to rebut or explain this surveillance.

On the record before me, petitioner has not met her burden of proving that she and the students reside at the in-district address.  Respondent’s evidence that petitioner resides outside the district is not overwhelming.  However, petitioner has provided no probative evidence beyond the documentary evidence and has not fully explained her presence at, and her continuing connections to, the out-of-district residence.  The appeal must, therefore, be dismissed.

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

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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