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Mina v. Board of Education for Homewood-Flossmoor

April 23, 2004

[5] ANDRA MINA, A MINOR, BY HER MOTHER AND NEXT FRIEND MIHAELA ANGHEL, PETITIONER-APPELLEE AND CROSS-APPELLANT,
v.
THE BOARD OF EDUCATION FOR HOMEWOOD-FLOSSMOOR, COMMUNITY HIGH SCHOOL DISTRICT 233, COOK COUNTY, ILLINOIS; LAURA MURRAY, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF HOMEWOOD-FLOSSMOOR COMMUNITY HIGH SCHOOL DISTRICT 233; LEE GAUS, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE BOARD OF EDUCATION OF HOMEWOOD-FLOSSMOOR COMMUNITY HIGH SCHOOL DISTRICT 233; AND E. VON MANSFIELD, IN HIS OFFICIAL CAPACITY AS PRINCIPAL OF HOMEWOOD-FLOSSMOOR COMMUNITY HIGH SCHOOL DISTRICT 233, RESPONDENTS-APPELLANTS AND CROSS-APPELLEES.



[6] Appeal from the Circuit Court of Cook County. No. 03 CH 01612 The Honorable Donald J. O'Brien, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Fitzgerald Smith

[8]  Respondents-appellants the Board of Education for Homewood-Flossmoor, Community High School District 233, Laura Murray, Lee Gaus and E. Von Mansfield (collectively, Board) appeal the trial court's reversal of its decision finding that petitioner-appellee Andra Mina (Andra), by her mother and next friend Mihaela Anghel, was not a resident of school district 233 and owed $5,901.15 in tuition fees for her attendance of Homewood-Flossmoor High School. In addition, cross-appellant Andra appeals from the trial court's concurrent holding that she was not entitled to sanctions against cross-appellee Board. For the following reasons, we reverse the trial court's decision in part and affirm in part.

[9]  BACKGROUND

[10]   Andra was enrolled in school district 233 and attended Homewood-Flossmoor High School (high school). In August 2001, at the beginning of the 2001-02 school year, Andra lived in a rented apartment with her mother Mihaela Anghel and her step-father Marian Anghel at 749 Elm Street in Flossmoor, inside the boundaries of district 233. Accordingly, Andra attended the high school tuition-free as a resident of the district. Andra used the Flossmoor address as her residence on her high school registration form for that year.

[11]   In November 2001, assistant principal Pamela Allen-Tucker noticed that mail the high school had sent to Andra and her parents at the Flossmoor apartment was being returned with a forwarding address of 1407 Pinewoods Court in University Park, a location outside the boundaries of district 233. Allen-Tucker was also informed by one of Andra's teachers that Andra was seen being driven to school in the mornings by her mother from outside the district. In August 2002, with the beginning of the 2002-03 school year, Andra's registration form again stated that her residence was the Flossmoor apartment. Allen-Tucker began an investigation into Andra's residency status, and in November 2002, the school district notified her parents that it had determined that Andra was not a resident of the district and could no longer attend the high school tuition-free. Mihaela Anghel requested a hearing on Andra's residency status, which was held on December 12, 2002.

[12]   Marian Anghel testified before the hearing officer that he, Mihaela and Andra lived at the Flossmoor apartment when Andra began the 2001-02 school year. In September 2001, they began negotiations with a bank for the sale and purchase of a house in foreclosure. This house was located at 328 Serena Drive in Chicago Heights, within school district 233. Marian testified that at the same time, the family also entered into a contract for the sale and purchase of the house in University Park. That house was situated on top of a hill surrounded by two to three acres of forest, and was located outside the boundaries of the school district. Sale of the University Park home was completed without any problem and the Anghels closed on that property in September 2001.

[13]   Marian further testified that with respect to the Chicago Heights home, title problems were encountered and the Anghels' purchase of that property was delayed. However, the Anghels had already terminated their lease on the Flossmoor apartment in September 2001 and were required to vacate the premises no later than November 2001. The Anghels moved into the University Park home in November 2001. In December 2001, the Anghels finally signed a contract for the purchase of the Chicago Heights home and the closing occurred in February 2002. The Anghels did not move into the Chicago Heights home, however, because it was not habitable and local authorities would not issue an occupancy permit. Marian testified that during the next months, he, Mihaela and Andra "rehabbed" the home, but did not sleep there because there was no place in the home to do so. They paid real estate taxes, as well as the utility, gas and electric bills, on both the University Park and Chicago Heights homes. As of the hearing (December 2002), Marian had not yet received a final occupancy permit for the Chicago Heights home. He testified that his intent in purchasing the University Park home was for vacation, and his intent in purchasing the Chicago Heights home was "to move in and reside in [the district] until Andra finishes school."

[14]   Mihaela Anghel testified briefly that her intent in purchasing the Chicago Heights property was to live there as her home since it was located only five minutes from where she and her husband worked, and that her intent in purchasing the University Park property was for vacation purposes. She admitted that she moved to University Park with Andra when they left the Flossmoor apartment and found that they could not live at the Chicago Heights property because it was not habitable. She confirmed Marian's testimony that there was nowhere to sleep there and stated that she took Andra back and forth to school from the University Park home because that is where Andra did her homework and kept her computer and other belongings. When asked where the family lived between the start of the 2002-03 school year and the time of the hearing, Mihaela testified that they did not live "physically in just one place."

[15]   Jean Thompson, the Anghels' real estate broker, testified that she facilitated the sale of both the Chicago Heights and University Park homes to the Anghels. Thompson stated that the Anghels told her they wanted the Chicago Heights home to "rehab" for their own use and to stay in the district for Andra's sake, and the University Park home for recreation.

[16]   Assistant principal Allen-Tucker testified that she was alerted to Andra's residency issues during the 2001-02 school year, when mail sent to her Flossmoor address within the district was being returned to the school unopened with a forwarding address in University Park, outside the district. The Flossmoor address was listed as Andra's residence on both her 2001-02 and 2002-03 school registration forms, at the beginning of each school year. Allen-Tucker testified that the last time the school had sent mail to Andra at the Flossmoor address, which was then returned with the University Park forwarding address, occurred right before the hearing in December 2002.

[17]   Jim Blackman, Andra's driver's education teacher at the high school for the 2002-03 school year, testified that he became curious about Andra's residency on the first day of school in August 2002. As part of his course, Andra was required to fill out a permanent record card. She filled out the card, but did not write an address in the space provided for her residence. Blackman also noticed that the phone number Andra listed on the card came from an area outside the district. When Blackman questioned Andra about the card, she told him that her family was living in University Park and was trying to purchase a home in Chicago Heights. Blackman also testified that on three separate occasions on his way to and from the school, he saw Andra being driven by her mother from outside the district: twice in the morning before classes he followed them to the school from outside district boundaries, and once in the afternoon after school he followed them as they left the school and district boundaries.

[18]   Mike Flagg, the district's residency investigator, testified that he was called to investigate Andra's residency status by the high school soon after the start of the 2002-03 school year. On several different occasions at different times of the day, he went to the three addresses in question (the Flossmoor apartment, the Chicago Heights home and the University Park home) and recorded his observations in a log which he submitted at the hearing. Flagg testified that he went to the Flossmoor apartment in the morning before school on September 4, 9, and 13, 2002, and Andra never appeared. He rang the doorbell of the apartment on the evening of September 20, 2002, and no one answered. He went to the Chicago Heights home on the mornings of September 23, October 28, and November 13, 2002. He observed that the house was empty, no one answered the door and it looked like it was being "rehabbed." Flagg had taken pictures of the home and submitted them to the hearing officer. He also went to the home on the evening of November 25, 2002, and saw a white car registered to Andra's parents in the driveway; the "rehab" looked finished but no one answered the door when he knocked. Flagg testified that he went to the University Park home on the mornings of September 26, October 1, 7, 11, 22, 30 and November 4, 2002, and the evening of October 18, 2002. Each of these mornings, he saw Andra come out of the home with her mother and followed them as they drove from University Park to the high school. In the evening (as well as on several mornings), he saw two cars parked in the driveway, both of which were registered to Andra's parents. Flagg further testified that he showed Andra's picture to the school bus driver of the route Andra was scheduled to be on, and the bus driver stated he had never seen her before and she had not ridden the bus that school year. Flagg stated that the school administration received a telephone call from a community member who told them no one was living at the Chicago Heights home. Based on his observations and all the information he obtained, it was Flagg's conclusion that Andra was residing at the University Park home.

[19]   At the conclusion of the hearing, the hearing officer issued a lengthy decision, reviewing all of the testimony given, the witnesses' credibility and the exhibits presented. In discussing Marian's and Mihaela's testimony regarding their intent in purchasing the two homes, the hearing officer noted that one cannot establish a residence in a place where he has never resided and then argue residence as a result of an intention to become a resident in the future. In her findings, the hearing officer stated that the Anghels' purchase of the Chicago Heights home was solely for the purpose of allowing Andra to attend the high school, which was insufficient to establish residency in the district for the purpose of attending the high school tuition-free. Despite what the Anghels stated was their intent, the Chicago Heights home was not their residence; rather, the family had been living at the University Park home for some time. The hearing officer noted that according to the Illinois School Code (School Code) (105 ILCS 5/10-20.12b(a)(2)(v) (West 2002)), in order for Andra to attend the high school tuition-free for the 2002-03 school year, the burden was on Mihaela as Andra's mother and legal custodian to demonstrate that Andra's "regular fixed night-time abode for purposes other than to have access to the educational programs of the district" was within the district. The hearing officer determined that "[t]his has not been accomplished" since there was "no physical presence observed [at the Chicago Heights home], and certainly not presence of a regular or continual nature, other than to work on the property." Rather, the hearing officer found that Andra's primary residence was the University Park home, and while the Anghels may have intended to return to the district, they presented evidence regarding only their future plans, and this alone did not establish residency. The hearing officer concluded that the evidence proved Andra did not reside within the boundaries of the district and had not done so since November 2001 until at least the time of the hearing in December 2002.

[20]   Mihaela Anghel filed objections to the hearing officer's determination with the Board. Upon review, the Board approved the hearing officer's findings and conclusion that Andra was not a resident of the school district between November 2001 and December 2002. The Board sent a letter to the Anghels stating its decision, determining the amount of tuition owed for this period to be $16,628.62, and declaring that pursuant to the School ...


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