Appeal of MICHELLE HENDERSON, on behalf of her children, A.H., C.H. and J.J., from action of the Board of Education of the Newfield Central School District regarding residency.

Decision No. 17,377

(April 24, 2018)

Sayles & Evans, attorneys for respondent, Kimberlee Balok Middaugh, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Newfield Central School District (“respondent”) that her three children, A.H., C.H. and J.J., (the “students”) are not district residents.  The appeal must be sustained.

On or about August 22, 2017, petitioner enrolled her three children in respondent’s district, identifying an address located within the district’s geographical boundaries as her address (the “in-district address”).  Respondent subsequently admitted the students to its schools.

In the fall of 2017, a bus driver reported to the superintendent that it appeared that no one was home at the in-district address, and that petitioner would drop the students off at the bus pick-up point each morning just before the bus came.

In a letter to petitioner dated October 10, 2017, the superintendent asserted that:

Based on observation by staff that your children are being dropped off at the pick-up point each morning just before the bus comes, the [d]istrict is prepared to find that your children are not residents of the [d]istrict and are therefore not entitled to continue to attend the school on a tuition-free basis.

The superintendent informed petitioner that she had a right to submit additional documents for her consideration prior to October 23, 2017.

On October 20, 2017, petitioner emailed the superintendent and attached additional documentation in support of her claim of residency within the district.  In this email, petitioner indicated that the in-district address was “in various stages of remodeling,” and asserted that she and the students do not always sleep there.  Petitioner further asserted that she frequently traveled for work.  For example, petitioner indicated that she “ha[d] been in Rochester every day for a trade show” during the previous week and did not arrive back at the in-district address “until very late at night.”  Due to this, petitioner asserted that “the kids have been being picked up at our house after school by my mom and sleeping at her house,” which necessitated that petitioner “pick them up in the morning[,] ... get them ready for school and get them to the bus stop.”

On October 23, 2017, the superintendent and the district’s transportation assistant visited the in-district address. 

In a letter dated October 23, 2017, the superintendent informed petitioner of her determination that she and the students did not reside within respondent’s district and that her children would not be entitled to attend the district’s schools after October 31, 2017 without payment of tuition.  The superintendent acknowledged receipt of an “internet bill and a copy of a utility bill,” but reasoned that this did not demonstrate petitioner’s physical presence at the in-district address.  The superintendent further explained her rationale for finding that the students did not reside within respondent’s district:

First, the bus driver has observed that you have been driving your children to the bus stop from the direction of Ithaca every morning since the beginning of school.  Second, the bus driver has also observed that you or someone you designate picks up the children at the bus stop after school and drive away from the home.  Third, a visit to the home and a discussion with your brother, who is renovating the house for you, resulted in the discovery that you have not yet moved into the house (it is uninhabitable) even though you are planning to do so when the renovations are complete.

Petitioner met with the superintendent on November 2, 2017.  Following this meeting, and later that same day, the superintendent sent petitioner a letter indicating that petitioner “did not provide any new information so nothing has changed the [d]istrict’s original decision.”  This appeal ensued.  Petitioner’s request for interim relief was granted on December 12, 2017.

Petitioner argues that she was in the process of renovating and buying the house at the in-district residence at the time she enrolled the students in the district.  Petitioner submits various documents in support of her claim that she and her children reside at the in-district residence and provides an explanation refuting the superintendent’s reasons for concluding that she and the students did not reside at the in-district address.  Petitioner requests a determination that the students are district residents entitled to attend respondent’s schools without the payment of tuition.

Respondent denies petitioner’s assertions and argues that its decision was rational and is supported by the evidence in the record.

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 residence is not lost until it is abandoned and another is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  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 K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  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 K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

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).

First, I must address a procedural matter.  Respondent objects to petitioner’s reply as it was served one day late.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14 [a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  However, Commissioner’s regulation §276.3 permits the Commissioner to allow an extension of time to answer the petition or reply to an answer upon good cause shown and upon such terms and conditions as the Commissioner may specify (8 NYCRR §276.3).  Although petitioner failed to request an extension of time to reply in accordance with §276.3 of the Commissioner’s regulations, I will accept her reply in light of the fact that she is proceeding pro se; that the delay of a single day was de minimis; and that there is no evidence that respondent was prejudiced by the delay (Appeal of Lombardo, 37 Ed Dept Rep 721, Decision No. 13,967).

Respondent further argues that petitioner was not entitled to submit a reply, as it did not raise any affirmative defenses in its answer and “a reply is only required for each affirmative defense.”  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material set forth in the answer.

Although the evidence submitted by the parties is not overwhelming, upon review of the record, I conclude that petitioner has met her burden of proving that the students physically reside within respondent’s district.  Petitioner asserts that at the time she enrolled her children in August 2017, she was in the process of buying the in-district residence from her paternal grandmother and renovating the house.  As part of her enrollment application with the district in August 2017, petitioner submitted a letter from her paternal grandmother who stated that she was the owner of the property and that petitioner “is in the process of buying the property and [that petitioner] is the current resident.”  On appeal, petitioner also submits a receipt for storage services in connection with her move to the in-district address, electric and cable/internet bills addressed to her at the in-district address, emailed receipts for purchases sent to the in-district address, and a letter addressed to petitioner at the in-district address.

In response, respondent relies solely upon observations and contentions by the bus driver assigned to the students’ bus route for the in-district address and the transportation assistant for the district.  However, respondent has provided no surveillance evidence of the in-district residence or any other residence at which petitioner allegedly resides.  Although the evidence from both parties is not overwhelming, upon review of the record, I find that petitioner has provided sufficient evidence and reasonable explanations to rebut the bus driver’s and transportation assistant’s observations and contentions.

The bus driver asserts that, on a regular basis, she passed by the in-district address at about 7:10 a.m. and did not observe lights on in the house or any cars in the driveway.  The bus driver further contends that, after she drives by the house, she travels approximately 15 minutes to pick up other children before picking up petitioner’s children.  She indicates that:

No one was at the bus stop when I first passed in the morning.  However, when I returned, the [p]etitioner would be parked in a car with her children at the bus stop.  The children of the [p]etitioner would exit the car to enter the bus at this stop. 

Petitioner responds that the bus driver’s observations are not probative since the in-district address is only visible from a major road where cars are “traveling at 50mph” and, even then, the view of the in-district address from this road is obscured.  Petitioner submits a video recording depicting the view of the in-district address as seen from the road where the bus passes.  Upon review of this video, I agree with petitioner that it is difficult to view the in-district address and ascertain details such as whether lights were on in the house, or whether cars were parked in the driveway of the in-district address, thereby diminishing the credibility of the bus driver.

In response to the bus driver’s statement that petitioner always drives the students to the bus stop rather than letting them walk to the bus stop, petitioner contends that the bus stop is approximately “1/8 of a mile” from the in-district address and located by a busy road.  Petitioner explains that she does not want her children, who are of young age, walking to the bus stop alone.  Petitioner further explains that driving the students to the bus stop is convenient as she leaves directly for work after they are dropped off.  I find that petitioner has offered a reasonable explanation as to why the bus driver saw petitioner driving the children to the bus stop in the morning.

Finally, in the superintendent’s October 23, 2017 letter, she asserted that petitioner drives the students to the bus stop “from the direction of Ithaca every morning since the beginning of school.”  Petitioner denies this contention, but admits in her petition that, occasionally, the students stay over at her parents’ house and petitioner picks them up in the morning due to the nature of her job, which requires frequent travel.  Thus, the evidence in the record does not support the superintendent’s suggestion that the students regularly stay at an address located outside of respondent’s district.

Respondent also submits an affidavit from the district’s transportation assistant who indicates that she visited the property with the superintendent on or about October 23, 2017 to investigate petitioner’s residency.  The transportation assistant asserts that, when she arrived at the in-district address, petitioner’s brother came to the door, informed her that he was making repairs to the property and stated that petitioner and the students “were not living at the house because additional repairs were needed for the home.”  Petitioner’s brother further informed the superintendent and transportation assistant that “[p]etitioner and her children ‘plan to reside at the house once repairs are completed.’”  The transportation assistant also observed a portion of the house while the front door was open and “was not able to see any furniture inside.”  However, I find that this tends to corroborate petitioner’s statements that she was in the process of buying and renovating the in-district residence.  In fact, the transportation assistant admits that petitioner’s brother told her that petitioner and the children were to reside there once “the repairs were complete.”    

Therefore, on the record before me, I find that petitioner has met her burden of proof and that respondent’s determination that the students do not reside in the district is not supported by the record and must be set aside.  If respondent remains concerned that petitioner and the students do not actually reside within its district, it may collect evidence through surveillance, home visits, or other means (see e.g. Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933).  While respondent is free to investigate further in accordance with §100.2(y) of the Commissioner’s regulations, in the interim, it must admit the students to its schools (see e.g. Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the students to the schools of the district without the payment of tuition.

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