Appeal of N.H, on behalf of her son N.H.-W., from action of the Board of Education of the Valley Stream Central High School District regarding residency.

Decision No. 17,732

(August 14, 2019)

Guercio & Guercio, attorneys for respondent, Christopher W. Shishko, Esq., of counsel.

ELIA., Commissioner.--Petitioner challenges the determination of the Valley Stream Central High School District (“respondent”) that her son (“the student”) is not a district resident.  The appeal must be dismissed.

The record reflects that the student was initially enrolled in respondent’s district in 2016 and attended school in respondent’s district through the 2018-2019 school year.  A registration packet submitted by petitioner to the district in July 2018 indicated that petitioner’s lease for her apartment within the district (“the in-district address”) expired on October 31, 2018.  Respondent received confirmation from petitioner’s apartment management company that the petitioner moved out of her apartment on or about February 6, 2019.

Respondent scheduled a meeting to afford petitioner an opportunity to submit information concerning the student’s right to attend school in the district.  At a residency meeting on March 7, 2019, petitioner testified that she moved out of her apartment within the district to an address in Hewlett, New York within the Hewlett-Woodmere Union Free School District (“the out-of-district address”).

By letter dated March 8, 2019, respondent notified petitioner of its determination that the student was not a district resident.  Notwithstanding this determination, respondent indicated that the student would be permitted to remain enrolled in the district until the end of the 2018-2019 school year.  This appeal ensued.  Petitioner’s request for interim relief was determined to be moot.

Petitioner contends that her move to the out-of-district address is only a “temporary” relocation, and that she moved “to avoid homelessness.”  Petitioner maintains that she is on a waiting list for an apartment within the district.  Petitioner also contends that since her son has been advised that he will have to change schools due to respondent’s residency determination, he has had anxiety and panic attacks which have adversely impacted his academic performance.  Petitioner indicates that the student has been seeing a therapist for assistance in coping with these anxiety and panic attacks.  Petitioner submits a note from her son’s therapist dated April 30, 2019, which states that a “move to a new school will be harmful to his emotional and psychological development.”  Petitioner seeks a determination that her son may complete his senior year at Valley Stream Central High School without payment of tuition.[1]

Respondent generally denies petitioner’s contentions and asserts that petitioner’s appeal must be dismissed as untimely.  Additionally, respondent contends that petitioner has not established that her absence from the district is only temporary and, therefore, its determination to exclude the student is not arbitrary, capricious or an abuse of discretion.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).  Respondent’s determination from which petitioner appeals is dated March 8, 2019.  Affording five days for mailing as described above, petitioner had until April 15, 2019 to appeal respondent’s determination.  Petitioner did not commence this appeal until May 20, 2019.  Thus, petitioner’s appeal was not commenced within 30 days of her receipt of the March 8, 2019 residency determination and the appeal must be dismissed as untimely (see Appeal of Wright, 45 Ed Dept Rep 356, Decision No. 15,347).

Petitioner attempts to explain her delay in commencing her appeal.  Specifically, petitioner states that on March 10, 2019, she attempted to serve the appeal on a secretary to the superintendent, but the secretary indicated that she was not authorized to accept service.  Petitioner further asserts that the secretary informed her that “only the Superintendent & District Clerk are allowed to accept legal documents.”[2]  Petitioner further asserts that she made “several attempts to rectify the matter,” but was only able to serve the instant petition on May 10, 2019 after she contacted the State Education Department for “further guidance and instruction.”

While not entirely clear, it appears that petitioner argues that her lack of knowledge as to how to initiate an appeal to the Commissioner pursuant to Education Law §310 constitutes good cause which should excuse the delay.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Funderburke-Ivey, 57 Ed Dept Rep, Decision No. 17,241; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  The record does not demonstrate any unusual circumstances in this case.  Accordingly, the appeal must be dismissed as untimely (Appeal of C.T., 56 Ed Dept Rep, Decision No. 16,964).

Although delays in residency cases may have been excused, where, inter alia, the facts suggest residency in the district, the delay is de minimus, and requiring the student to re-apply at the district level before appealing to the commissioner would not promote judicial economy (Appeal of Kowalewski, 56 Ed Dept Rep, Decision No. 17,013; Appeal of Manfredo, id., Decision No. 16,943; Appeal of Jean-Louis, 49 id. 400, Decision No. 16,062), those factors are not present here.  Moreover, I note that petitioner failed to submit a reply and, therefore, did not respond to respondent’s affirmative defense that the appeal is untimely.  Accordingly, I find the appeal is untimely, warranting dismissal.

Even if the appeal were not dismissed as untimely, it would be dismissed on 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).  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).  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).

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).

On the record before me, I find that petitioner has failed to meet her burden of proving that she and her son reside in respondent’s district.  Petitioner concedes in her verified petition that she and the student reside outside the district.  Although petitioner states that she moved to the out-of-district address temporarily and that she desires to return to Valley Stream, she presents no evidence regarding her continuing ties to the district or efforts to return, other than evidence concerning her interest in being placed on a waiting list for an apartment at the apartment complex within respondent’s district.[3]  In this respect, petitioner attaches a brochure for the apartment complex and a blank, uncompleted form on apartment complex letterhead entitled “transfer application addendum.”  Petitioner also submits an email from an apartment complex lease coordinator to petitioner dated May 10, 2019 which appears to have attached the transfer application addendum form.  The email from the lease coordinator is entitled “Transfer Agreement” and contains no text, other than an auto-generated signature and address block.  I cannot find, on this record, that petitioner has proven that she is actively seeking to return to respondent’s district (Appeal of Tunison, 58 Ed Dept Rep, Decision No. 17,472; Appeal of M.B., 52 id., Decision No. 16,448).  Therefore, on the record before me, I am unable to conclude that petitioner is residing outside of the district on a temporary basis.

While I am sympathetic to petitioner’s concerns regarding her son, the fact that the student may have difficulty adjusting to a new school, while regrettable, is not a basis for overturning respondent’s decision (see Appeal of Mohabir, 54 Ed Dept Rep, Decision No. 16,693; Appeal of Sponcy, 33 id. 126, Decision No. 12,998; Appeal of Cullen, 32 id. 179, Decision No. 12,798).

Finally, I note that petitioner states in the petition that she moved to the out-of-district address to “avoid homelessness.”  Although petitioner does not assert that she and the student are homeless or seek any relief in this regard, I note that issues not raised before respondent and presented for its consideration and decision, including claims of homelessness, may not be raised for the first time in an appeal to the Commissioner under Education Law §310 (see e.g. Appeal of M.S., 59 Ed Dept Rep, Decision No. 17,668; Appeal of J.M. and R.C., 58 id., Decision No. 17,470; Appeal of J.H., 52 id., Decision No. 17,376).

In view of the foregoing, I find respondent’s determination to be neither arbitrary nor capricious.  Accordingly, it will not be set aside.

Although the appeal must be dismissed for the reasons described above, I note that petitioner retains the right to reapply for admission to respondent’s schools on the student’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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