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Decision No. 16,129

Appeal of L.B., on behalf of her daughter L.M., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Appeal of L.B., on behalf of her daughter J.B., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,129

(August 20, 2010)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

STEINER, Commissioner.--In two separate appeals, petitioner challenges the determinations of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughters, L.M. and J.B., are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act of 2001 (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, are 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.

Petitioner’s children have been enrolled in respondent’s schools for several years.  On or about December 14, 2009, while attempting to hand-deliver a letter to petitioner at the family’s Edward Street residence, within the district, a district security guard was informed that petitioner and her family no longer resided there.  Subsequently, the district commenced a residency investigation, which included, interalia, a public records search to determine where petitioner was residing.  As a result of this search, the district learned that petitioner was residing on Emery Street in Hempstead, New York, outside of the district.  The New York State Department of Motor Vehicles’ (“DMV”) records listed the Emery Street residence as petitioner’s address and indicated that petitioner’s oldest daughter, C.M., also had a vehicle registered at that address.

Additionally, on 11 separate occasions from January 22 to March 9, 2010, the district conducted surveillance at the Emery Street residence.  On each of these occasions, the vehicle registered to C.M. was observed and on several of these occasions, petitioner was observed using this vehicle to transport L.M. and J.B. to schools within the district.  On one occasion, J.B. was observed taking a taxi from this residence to the district’s high school.  The investigators confirmed their observations of L.M. and J.B. on the surveillance dates by verifying with district staff their dress on those days.

By letter dated February 9, 2010, the district advised petitioner that a determination had been made that L.M. and J.B. were not district residents and therefore, not entitled to attend respondent’s schools and would be excluded from attendance effective February 23, 2010.  The letter further informed petitioner that the basis for this determination was that another family had moved into the Edward Street residence and the district was unable to substantiate the residency of petitioner’s family within the district.  In addition, the letter offered petitioner the opportunity to meet with the district’s director of pupil services to discuss the determination and to offer documentary evidence of her family’s residency within the district.

On February 12, 2010, the district’s director of pupil services and the district’s registrar had a telephone conference with petitioner to discuss her family’s residency within the district.  Petitioner alleged that she was forced to leave the Edward Street residence due to the foreclosure of the property and that she was renting the Emery Street residence.  Petitioner also maintained that she planned to find housing in the district but offered no evidence to support this claim.  Petitioner further indicated that she did not want her children to attend Hempstead’s schools.  At the conclusion of the conversation, petitioner was advised that L.M. and J.B. would be excluded from the district’s schools at the end of the school day on February 23, 2010.

Subsequently, petitioner contacted the district’s homeless liaison and informed him that she was no longer residing at the Emery Street residence and that she was now temporarily residing at another residence on Edward Street, within the district.  On or about February 22, 2010, the liaison met with petitioner to discuss whether she and her family were homeless within the meaning of McKinney-Vento and Education Law §3209.

By letter dated March 1, 2010, the district notified petitioner that a determination had been made that L.M. and J.B. were neither district residents nor homeless, and that they were not entitled to attend respondent’s schools.  The letter also offered petitioner the opportunity to meet with the director of pupil services to discuss this determination and to offer documentary evidence of either her family’s residency within the district or homelessness.

On March 3, 8 and 9, 2010, the district conducted surveillance of the Edward Street residence, where petitioner claimed her family was temporarily residing.  Neither petitioner, L.M. nor J.B. was observed at this residence on any of these dates.  However, on March 8, 2010, petitioner was observed transporting L.M. from the Emery Street residence to school and then going to the district’s offices to attend a residency meeting.

On March 8, 2010, petitioner met with the director of pupil services, the registrar and the homeless liaison to discuss her claims of homelessness and/or residency within the district.  Petitioner reiterated her claim that she was homeless and stated that she occasionally stayed at the Emery Street residence and kept belongings there.  Petitioner also submitted a letter from a friend claiming that she was temporarily renting an apartment to petitioner on Edward Street.

By letter dated March 8, 2010, the district notified petitioner that a final determination had been made that L.M. and J.B. were neither district residents nor homeless, and that they were not entitled to attend respondent’s schools.   These appeals ensued.  Petitioner’s requests for interim relief were granted on April 21, 2010.

Petitioner contends that her children are homeless within the meaning of McKinney-Vento and, therefore, are entitled to attend respondent’s schools.

Respondent asserts that the appeals must be dismissed as untimely.  Respondent further contends that petitioner’s children are not entitled to attend its schools because they are neither district residents nor homeless.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  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 Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).

Respondent argues that the appeals are untimely because they were commenced more than 30 days after its March 8, 2010 determination.  While the record indicates that respondent notified petitioner of its determination by letter dated March 8, 2010, the record is unclear as to when petitioner actually received the notice.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be March 13, 2010.  Petitioner thus had to commence her appeals on or before April 12, 2010.

By letter dated April 15, 2010, the district’s homeless liaison advised my Office of Counsel that the “affidavits of acceptance of personal service by local educational liaison for homeless children and youth,” (“affidavit of acceptance”) that he had forwarded with the petitions incorrectly listed the dates of service for both petitions as March 11, 2010, instead of April 14, 2010.  This letter further advised that although petitioner initially met with him to draft her petitions on March 11, 2010, she did not complete the petitions and effect service of them until April 14, 2010.  While both petitions are undated, both “statements of petitioner for an appeal involving a homeless child or youth” are dated April 14, 2010.  However, the substitute affidavit of acceptance that the homeless liaison submitted with the aforementioned letter lists April 15, 2010 as the service date.  Thus, it appears from the record that petitioner did not properly commence her appeals by personal service upon respondent via the homeless liaison until April 14, 2010, at the earliest.  Therefore, her appeals must be dismissed as untimely.

Petitioner’s appeal on behalf of J.B. is also 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  By letter dated June 28, 2010, respondent’s counsel advised that J.B. had graduated on June 27, 2010.  Accordingly, petitioner’s appeal on behalf of J.B. is moot and must be dismissed.

Additionally, even if the appeals were not dismissed on procedural grounds, they would be dismissed on the merits.  At the time of respondent’s determination, Education Law §3209(1)(a)(1) defined a homeless child as:

  1. a child or youth who lacks a fixed, regular, and adequate night-time 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;
    4. awaiting foster care placement;

or

  1. a migratory child ... who qualifies      as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or

(2) a child or youth who has a primary night-time location that is:

  1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations...; or
  2. (ii)   a public or private place not designed for, or ordinarily used as, a regular sleeping accom-modation for human beings. . . .

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

Petitioner’s children do not fit the definition of homeless children under State or federal law.  The record shows that, since September 2009, petitioner and her family have resided in a residence outside the district.  They have a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate.  While it is unfortunate that petitioner and her children were required to move from their Edward Street residence due to foreclosure proceedings, there is no evidence in the record that petitioner’s and her family’s living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209.  Thus, petitioner has failed to demonstrate that her children lack a fixed, regular and adequate night-time residence and are homeless (seeAppeals of P.R., 48 Ed Dept Rep 24, Decision No. 15,781; Appeal of S.D., 47 id. 44, Decision No. 15,620; Appeal of L.F., 47 id. 39, Decision No. 15,617).

Additionally, petitioner has not established that her current Emery Street residence is temporary or transitional.  The petition contains only conclusory statements by petitioner that her current residence is temporary.  The fact that petitioner is renting a residence and intends to move back to the district does not make the residence temporary or transitional.  Furthermore, there is no evidence that she needs to vacate her current residence (Appeal of M.W., 46 Ed Dept Rep 151, Decision No. 15,471).

Moreover, petitioner’s claims that she now temporarily resides at the Edward Street residence are undermined by her statements that she still occasionally stays at the Emery Street residence and keeps some belongings there.  Her claims are further undermined by the district’s surveillance because neither petitioner nor her children were ever observed at the Edward Street residence.  In addition, both petitioner and L.M. were observed leaving the Emery Street residence in the morning on one occasion after petitioner alleged that she and her family had moved to the Edward Street apartment.

In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Based on the record before me, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable.

In light of this disposition, I need not address the parties’ remaining contentions.

Although petitioner’s claims that L.M. and J.B. are homeless must be dismissed, I note that petitioner has the right to reapply for admission on L.M.’s behalf at any time and to submit any documentary evidence for respondent’s consideration.

THE APPEALS ARE DISMISSED.

END OF FILE.