Appeal of P.B. and M.B., on behalf of their daughter K.B., from action of the Board of Education of the Cold Spring Harbor Central School District regarding residency.

Appeal of P.B. and M.B., on behalf of their daughter K.B., from action of the Board of Education of the Cold Spring Harbor Central School District regarding residency and transportation.

Decision No. 17,477

(August 7, 2018)

Paul Ajlouny & Associates, P.C., attorneys for petitioners, Edward J. Nitkewicz, Esq., of counsel

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

ELIA, Commissioner.--In two separate appeals, petitioners challenge determinations of the Board of Education of the Cold Spring Harbor Central School District (“respondent”) that their daughter (“the student”) is not a district resident (the “residency appeal”) and is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., (“McKinney-Vento”) (the “homeless appeal”) and, therefore, is not entitled to attend the district’s schools tuition-free.  Because these appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

The record reflects that the student has been enrolled in respondent’s schools for several years.  During this time, respondent asserts that petitioners have resided at multiple addresses within the district. 

Petitioners allege that, in or about May 2017, petitioner P.B. was arrested and charged with grand larceny in the second degree.  Petitioners further allege that, as a result of these charges, petitioner P.B. was terminated from his employment and petitioners “were forced to terminate the lease” for their residence located within respondent’s district.  Thereafter, according to petitioners, petitioner M.B. and the student moved in with the student’s aunt and uncle at their home, which is located within respondent’s district (the “in-district address”) while petitioner P.B. and petitioners’ two other children moved in with the student’s grandparents at their home, which is located outside of respondent’s district (the “out-of-district address”).

In a residency affidavit executed on August 8, 2017, the student’s aunt indicated that the student resided with her at the in-district address.  This affidavit did not indicate where petitioner P.B. or the student’s siblings resided.  Respondent states that this “raised concerns” as to the student’s residency.  Thereafter, respondent conducted a residency investigation, which included surveillance.  The surveillance revealed that, on ten separate school mornings, the student left the out-of-district address in the morning and was then driven to the in-district address or to her school.

In a letter dated December 22, 2017, respondent’s assistant superintendent for student services (“assistant superintendent”) notified petitioners of respondent’s determination that the student was not a district resident and, therefore, not entitled to attend respondent’s schools.  The assistant superintendent indicated that the student would be excluded from respondent’s schools effective January 5, 2018.  Subsequently, the assistant superintendent and superintendent met with petitioners as well as petitioner P.B.’s brother-in-law to discuss the student’s residency.

In a letter dated December 28, 2017, respondent’s superintendent affirmed the assistant superintendent’s determination that the student was not a district resident and would be excluded from its schools effective Friday, January 5, 2018.

On January 2, 2018, at petitioners’ request, a second meeting was held to discuss the student’s residency status, after which the superintendent confirmed his initial determination.  The residency appeal ensued.  Petitioners’ request for interim relief was denied on January 12, 2018.

During the week of January 15, 2018, and after petitioners’ request for interim relief in the residency appeal was denied, petitioner M.B. met with a guidance counselor.  During this meeting, petitioner M.B. indicated to the guidance counselor that petitioners would enroll the student in a nonpublic school.  At petitioner M.B.’s request, the guidance counselor forwarded recommendation letters to two teachers, who subsequently completed them and transmitted them to the nonpublic school.

Following submission of the recommendation letters, petitioner claimed that the student was homeless.  On February 1, 2018, the superintendent, assistant superintendent and homeless liaison met with petitioners to discuss the student’s alleged homeless status.

In a letter dated February 2, 2018, the superintendent notified petitioners of his determination that the student was neither a resident of respondent’s district nor homeless pursuant to McKinney-Vento and would be excluded from respondent’s schools effective March 5, 2018.  The superintendent found that the student resided at the out-of-district address and that it was a fixed, regular and adequate nighttime location.  The homeless appeal ensued.

In the residency appeal, petitioners contend that the student resides at the in-district address with petitioner M.B. and her aunt and uncle.  In the homeless appeal, petitioners contend that the student and petitioner M.B. are sharing the housing of other persons (the aunt and uncle’s in-district address) due to loss of housing caused by “severe financial hardship” and, therefore, the student is entitled to attend respondent’s schools.

Respondent contends that the student is not entitled to attend its schools because she is neither a district resident nor homeless.  Respondent maintains that its determinations were neither arbitrary nor capricious.

Turning first to petitioners’ residency appeal, 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Here, petitioners have failed to demonstrate that respondent’s residency determination was arbitrary or capricious.  Petitioners submit documents bearing the in-district address, including the student’s pay stubs as well as petitioner M.B.’s driver’s license which was issued in August 2017.  In this regard, I note that, generally, documentary evidence indicating the use of an in-district mailing address is not dispositive where, as here, contrary surveillance evidence exists that is not otherwise refuted or explained (see e.g. Appeal of Fietta, 52 Ed Dept Rep, Decision No. 16,444; Appeal of Stewart, 47 id. 92, Decision No. 15,637). Petitioners also submit affidavits from petitioner P.B., petitioner M.B., the student’s aunt, the student’s grandfather, and one of the student’s siblings.  However, these affidavits do not address or refute respondent’s surveillance evidence and attendant credibility determinations.  I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of Lee D., 38 id. 262, Decision No. 14,029).

As indicated above, on ten separate mornings from October 2 through December 21, 2017, an investigator observed the student departing from the out-of-district address in the morning and being driven to school or to the in-district address.  This evidence resulted in a determination that the student was not a district resident, and two meetings ensued where petitioners and school district employees discussed the student’s residency.

The first meeting, held on December 27, 2017, included the superintendent, assistant superintendent, petitioners, and the student’s uncle.  According to an affidavit submitted by the assistant superintendent, which petitioners do not respond to or refute, this meeting lasted 90 minutes and petitioners failed to provide a “reasonable or credible” explanation for respondent’s surveillance evidence.  While petitioner M.B. claimed that she and the student would “go back” to the out-of-district address “at times ... in the morning to get clothing or make lunches,” the assistant superintendent did not find this explanation credible.  Indeed, such explanation contradicts the surveillance evidence, which consistently showed the student being driven from the out-of-district address to the in-district address, and not vice-versa.  The assistant superintendent further dismissed petitioner P.B.’s explanation that the surveillance was not reliable because it was not conducted “early enough”  and he “often went to the gym in the morning.”  The student’s uncle also stated, when asked directly if the student slept at the in- district address, that “she definitely does at times,” but that he could not “quantify it or say for sure” because he traveled “over 200 days a year.”

Respondent convened a second meeting to discuss the student’s residency on January 2, 2018.  The superintendent, assistant superintendent, petitioner P.B., and the student’s aunt and uncle attended this meeting.  At the meeting, petitioner P.B. elaborated upon his statement that the surveillance was conducted too early in the morning, stating that he leaves the out-of-district address early in the morning to go to the gym, picks up the student from the in-district address, and then arrives with her at the out-of-district address.  This claim, however, is directly refuted by the surveillance evidence, which depicted petitioner P.B. arriving at the out-of-district address alone on three separate occasions. 

During the January 2, 2018 meeting, the student’s uncle again claimed that the student resided at the in-district address.  When the assistant superintendent reminded him of his earlier statement that he traveled “200 days out of the year” and could not verify how often the student slept at the in-district address, the student’s uncle said, in words or substance, “I did not realize I had said that.”  The student’s uncle further claimed that “in fact,” his “health [wa]s not well” and that he “ha[d] not been travelling at all.”  The assistant superintendent indicates on appeal that she did not find the student’s uncle credible given his shifting explanations.  The student’s aunt also attended this meeting and admitted that the student, during a three week period in December 2017, slept at the in-district address “two or three” times, at most.

As respondent argues, at these two meetings petitioners failed to address or refute respondent’s surveillance evidence, instead offering inconsistent and contradictory evidence as to the student’s living arrangement.  Therefore, the assistant superintendent did not find petitioners or the student’s aunt and uncle to be credible.  Petitioners point to no evidence, let alone clear and convincing evidence, that the assistant superintendent’s credibility determinations were inconsistent with the evidence in the record.  Therefore, although respondent’s surveillance evidence is not overwhelming, on this record, respondent’s determination that the student is not a district resident was neither arbitrary nor capricious.

Turning next to the homeless appeal, I must initially address several procedural matters.  Petitioners submitted a reply which exceeds the permissible scope of a reply.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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 or affirmative defenses set forth in the answer.

Respondent sought permission to submit a sur-reply affirmation.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  As noted above, I have not considered any portion of petitioners’ reply that is not responsive to new material or affirmative defenses in the answer.  Therefore, it is unnecessary to accept respondent’s sur-reply or petitioners’ response thereto.

The homeless appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  In the homeless appeal, petitioners allege that the student is homeless at the in-district address.  However, as discussed above, I have upheld respondent’s determination that the student actually resides at the out-of-district address.  Therefore, any analysis of the adequacy or temporary nature of the in-district address would be academic under the circumstances and the homeless appeal must be dismissed.

Even if the homeless appeal were not dismissed as moot, it would be dismissed on the merits.  Education Law §3209(1)(a) defines “homeless child” as:

1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
3. abandoned in hospitals; or
4. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
5. an unaccompanied youth ...; or

2. a child or youth who has a primary nighttime location that is:

1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....[1]

Both Education Law §3209 and §100.2(x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in McKinney-Vento.

Here, petitioners submit no information as to the adequacy of the in-district address and, thus, have failed to meet their burden of proof.  Indeed, the evidence in the record suggests that the in-district address is adequate:  petitioners submit a “Non-Owner/Renter/Tenant Affidavit” in the homeless appeal which indicates that the in-district address has six bedrooms and five and one-half bathrooms, and that it is occupied by four individuals.  Moreover, in the residency appeal, petitioners submitted color photographs of what they allege to be the student’s bedroom which depict a spacious room with its own bed and en suite bathroom.  Petitioners also fail to allege that the in-district address is temporary or transitional; there is no evidence in the record that, if the student were residing there, she would need to vacate the in-district address or that there is a fixed time limit as to how long she may remain (see Appeals of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).  Therefore, while I am sympathetic to petitioners’ circumstances, based on the record before me, I cannot conclude that respondent’s determination that the student is not homeless was arbitrary, capricious or unreasonable.

Although petitioners’ claims must be dismissed, I note that petitioners have the right to reapply for admission on the student’s behalf, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEALS ARE DISMISSED.

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