Appeals of T.M., on behalf of her son M. M.-C., from action of the Board of Education of the Elwood Union Free School District regarding residency.

Decision No. 17,496

(August 31, 2018)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ELIA., Commissioner.--In two separate appeals, petitioner challenges determinations of the Board of Education of the Elwood Union Free School District (“respondent”) that her son (the “student”) is not a resident of the district entitled to attend its schools tuition-free.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

On January 26, 2017, petitioner commenced an appeal pursuant to Education Law §310 challenging respondent’s January 24, 2017 determination that the student was not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  In Appeal of T.M. (57 Ed Dept Rep, Decision No. 17,165), issued on August 28, 2017, I found that petitioner had failed to meet her burden of proving that the student met the definition of a homeless student and dismissed the appeal.

The record indicates that, on September 4, 2017, the district’s assistant superintendent for business (“assistant superintendent”) spoke to petitioner by telephone and advised her that, based upon the disposition of Appeal of T.M. (57 Ed Dept Rep, Decision No. 17,165), petitioner would be required to register the student in its district if she wished for him to attend the district’s schools for the 2017-2018 school year.  Petitioner told the assistant superintendent that she resided at a location in the district (the “first in-district address”) and that she would register the student at that address.

The assistant superintendent met with petitioner on September 5, 2017 to discuss the student’s residency.  According to the assistant superintendent, petitioner represented that she and the student would be living at a different address within the district (the “second in-district address”).  Petitioner presented a landlord affidavit dated September 5, 2017 (the day of the meeting), which stated that petitioner and the student had begun living at the second in-district address as of September 5, 2017.  Respondent permitted the student to attend its schools based on this information.

Respondent thereafter initiated a residency investigation.  Respondent conducted surveillance of the second in-district address as well as an address located outside of respondent’s district (the “out-of-district address”) where petitioner had admitted that she resided in Appeal of T.M. (57 Ed Dept Rep, Decision No. 17,165).  In September 2017, surveillance was conducted on five days at the out-of-district address and on seven days at the second in-district address.  Petitioner was observed leaving the out-of-district address on four out of the five dates of surveillance and was seen looking out of a window at that address on the fifth date.  The student was observed leaving the second in-district address on two of the seven dates of surveillance.  Petitioner was not observed at the second in-district address on any of the seven days of surveillance.

By letter dated September 26, 2017, the assistant superintendent informed petitioner of respondent’s determination she did not live within the district based upon the surveillance evidence.  The assistant superintendent further stated that the student would be excluded from respondent’s schools on October 4, 2017.[1]

On September 27, 2017, petitioner emailed the assistant superintendent a redacted letter from a credit card company dated September 8, 2017 bearing the second in-district address in support of her contention that she lived within the district.

On October 5, 2017, the assistant principal spoke with petitioner by telephone.  Petitioner represented that she “usually” stayed at either the first or second in-district addresses, but sometimes stayed at the out-of-district address with a friend when she worked nights.  Petitioner also indicated that she intended to submit additional evidence to support her claim of residency.

On October 23, 2017, the assistant principal emailed petitioner, stating that she had not received any further evidence of residency and requesting that petitioner provide any such evidence.

On October 30, 2017, petitioner emailed the assistant superintendent and attached a redacted letter dated October 21, 2017 from the Social Security Administration bearing the second in-district address.

In a letter dated November 8, 2017, the assistant superintendent informed petitioner that the additional information which she had provided did not affect respondent’s original residency determination and that the student would be excluded from respondent’s schools on November 17, 2017.  The first appeal ensued.  Petitioner’s request for interim relief was denied on November 27, 2017.

On November 27, 2017 petitioner emailed the assistant superintendent and informed her that petitioner was in the process of transferring custody and control of the student to a family member who resided at the first in-district address. 

On November 28, 2017, a friend of petitioner’s delivered custodian and parent affidavits to the district which purportedly transferred custody and control of the student to a family friend who resided at an address within the district (the “third in-district address”). 

By letter dated November 29, 2017, the assistant superintendent informed petitioner that the district would not enroll the student in its district because her purported transfer of custody and control was insufficient.  The second appeal ensued.  Petitioner’s request for interim relief was denied on December 8, 2017.

Petitioner contends that the student resides within respondent’s district.  In the first appeal, petitioner claims that her health worsened on or about September 15, 2017, causing her to be hospitalized for emergency surgery, and that her son then went to stay with her family member at the first in-district address “full time.”  She asserts that she stays at the out-of-district address with a friend two nights per week because she works overnight near the out-of-district address. 

In the second appeal, petitioner claims that she has transferred guardianship of the student to a family friend who lives at the third in-district address and that the student intends to reside there “until he is 18 years of age.”  Petitioner asserts that, although the student had previously resided with family at the first in-district address, a family friend took the student in at the third in-district address due to petitioner’s health issues.  In both appeals, petitioner seeks a determination that the student is a resident of respondent’s district and is entitled to attend the district’s schools without payment of tuition.

With respect to the first appeal, respondent claims that the appeal must be dismissed because petitioner failed to effectuate proper service of the petition.  Respondent also asserts that surveillance evidence showed that petitioner and the student do not live at the first in-district address, as petitioner claims in the petition, but rather reside at the out-of-district address.  Respondent asserts that petitioner’s documentary evidence and unsubstantiated claims do not refute its surveillance evidence.  Respondent further claims that the statements contained in the petition regarding petitioner’s health and her overnight work schedule were not presented to the district when it rendered its decision.  

With respect to the second appeal, respondent asserts that the documents submitted by petitioner do not reflect a complete transfer of custody and control of the student to the family friend.  Respondent also states that the versions of the custody and parental affidavits which petitioner submitted with her appeal are materially different from the versions it was given at the local level.  Accordingly, respondent argues that the student’s residence is with petitioner, his legal guardian, and petitioner resides outside of its district.

I must first address a procedural matter.  Respondent claims that the petition in the first appeal must be dismissed because petitioner did not serve a copy of the petition on an individual authorized to accept service on behalf of the district.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

Here, the affidavit of service filed with the first petition indicates that it was served upon Tina Wen, who is listed as an “admin assistant.”  According to the affidavit completed by the process server, Ms. Wen was “duly authorized to accept service.”  Respondent argues that service was improper because all service of legal papers on the district must be made upon the district clerk.  The district clerk, however, is not the only individual who may accept service on behalf of the district.  Commissioner’s regulation §275.8(a) states that:

If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.  8 NYCRR §275.8(a).

Respondent does not address whether the administrative assistant was located within “the office of the superintendent” or whether she “has been designated by the board of education to accept service”; respondent merely states that the process server “effectuated the delivery of her pleadings to the District’s Business Office ....”  Respondent bears the burden of establishing any affirmative defenses, and on this record, I find that respondent has failed to do so (see Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).

Turning to the merits, 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).

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

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).

First, I must address whether petitioner transferred custody and control of the student to the family friend and, thus, rebutted the presumption the he resides with petitioner.  The record shows that, after petitioner’s request for interim relief in the first appeal was denied, the district received custody and parent affidavits from petitioner dated November 28, 2017 which purported to transfer custody and control of the student to the family friend.

The record contains two versions of these forms, both of which are dated November 28, 2017.  The first version was submitted by respondent in both appeals, and the second version was submitted by petitioner with her petition in the second appeal.  These affidavits are materially different; for example, question five in the parent affidavit asks: “How long do you intend for this living arrangement to continue?”  In the first version, petitioner answered: “July 2018” and “6-8 months, depending on if my condition worsens.”  However, in the second version, petitioner wrote: “Until [the student] is 18 or graduates.”  Question eight in the parent affidavit asks: “Who will be making day to day decisions regarding your child?”  In the first version, petitioner answered that the family friend would make day-to-day decisions, as would she “when able.”  In the second version, petitioner indicated that only the family friend would make day-to-day decisions.  The custodian affidavit contains similar discrepancies.

Respondent asserts that it received the first version of the affidavits at the local level and had not seen the second version until petitioner submitted it with the second appeal.  Petitioner does not submit a reply or attempt to explain the discrepancies between the two documents.  Thus, the second version of the affidavits constitute additional evidence that was not previously presented to respondent.  Respondent objects to admission of this evidence but does not seek remand on this basis.  Since the matter is now before me and respondent has had ample opportunity to respond to petitioner’s evidence in its answer, I will consider both versions of the affidavits (see e.g. Appeal of Strickland, 56 Ed Dept Rep, Decision No. 17,023).

     In any case, based upon a review of the custody and parent affidavits in the record before me, petitioner has failed to demonstrate that she effectuated a complete transfer of custody and control of the student.  In addition to the discrepancies between the two versions of the affidavits noted above, I also note that, while petitioner states in the second version of the parent affidavit that the student will reside with the family friend “[u]ntil [the student] is 18 or graduates,” and that the family friend will make day-to-day decisions for the student, petitioner also states that she will continue to provide financial assistance for the student.  Moreover, in response to the question “Who will provide the child with food, clothing and all other necessities?” in the second version of the custodian affidavit, the family friend responded: “myself, my parents, his [i.e., the student’s] mom.”  The family friend also indicates that the student will not be listed as a deduction on her income tax filings or under her health insurance.  This evidence does not establish a complete transfer of custody of care and control of the student from petitioner to the family friend (see Appeal of Marbury, 41 Ed Dept Rep 119, Decision No. 14,634 [no complete transfer of custody and control where parent provided financial support, food, clothing, claimed children for income tax purposes, and retained decision-making authority over the student’s welfare]; Appeal of S.V., 38 id. 478, Decision No. 14,075 [no complete transfer of custody or control where parent provided student with food, clothing, and other necessities, provided health insurance for the student and claimed her son for income tax purposes]; Appeal of Noble-Silverberg, 38 id. 213, Decision No. 14,017 [no complete transfer of custody and control where purported transfer was limited in duration and parent would continue to provide financial and other assistance]).  Therefore, the presumption that the student resides with petitioner, his legal guardian, has not been rebutted.

On this record, petitioner has failed to demonstrate that she physically resides within respondent’s district.  In support of her claim, petitioner submits with her first petition two unsworn statements from individuals who attest to her residence within respondent’s district; evidence suggesting that the out-of-district address is in foreclosure; and a letter from a bank, a handwritten envelope, and a letter from the Social Security Administration all bearing the second in-district address.  While I have reviewed these documents and they are entitled to some weight, they are not dispositive, particularly in light of respondent’s surveillance evidence (see e.g. Appeal of Guo, 51 Ed Dept Rep, Decision No. 16,312).  As discussed above, respondent conducted surveillance on five separate mornings in September 2017 (i.e., September 11, 12, 14, 19, and 25, 2017) at the out-of-district address, where petitioner claims she stays approximately two nights per week due to her work schedule.  Petitioner was seen at the out-of-district address on each of these five days of surveillance.  On four of those mornings, petitioner was observed leaving the out-of-district residence.  On the fifth day, she was observed looking out the window of that residence.  Surveillance was also conducted at the second in-district address on seven days (i.e., September 6, 7, 11, 12, 14, 19, and 25, 2017).  Petitioner was not observed at the second in-district address on any of these days.[2]

Although on appeal petitioner presents an explanation for her presence at the out-of-district address; namely, that she stays at the out-of-district address approximately two days per week due to medical issues and her work arrangement, petitioner provides no proof in support of this explanation.  For example, petitioner has not identified the nature of the alleged “part time job” she holds or established that she works “overnight” at a location in close proximity to the out-of-district address.  Similarly, although petitioner asserts in the first appeal that she has been “battling cancer”, petitioner has produced no evidence of her medical condition other than unsworn statements from residents of the second and third in-district addresses and the out-of-district address, even though she asserted in the first appeal that she had recently “go[ne] in for emergency surgery.”[3]

Therefore, based on this record, I cannot find respondent’s determinations that the student is not a district resident to be arbitrary or capricious.   Consequently, the appeals must be dismissed.

Although the appeals must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of the student in the future, should circumstances change, and to present any new information or documentation including, for example, proof of her medical condition and/or proof of a total and permanent transfer of custody and control of the student, for respondent’s consideration.

THE APPEALS ARE DISMISSED.

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