Decision No. 16,812
Appeal of D.W., on behalf of her daughter V.G., from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency and transportation.
Decision No. 16,812
(August 12, 2015)
Hodgson Russ LLP, attorneys for respondent, Melanie J. Beardsley, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cleveland Hill Union Free School District (“respondent”) that her child, V.G., is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 U.S.C. §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or to receive transportation. The appeal must be dismissed.
During the 2013-2014 school year, petitioner’s daughter was a third-grade student in respondent’s district. According to the record, petitioner and her two children resided within the district in a residence owned by petitioner’s mother and V.G. attended respondent’s schools as a resident student. Petitioner alleges that, in October 2014, she and her children lost their in-district residence because petitioner’s mother decided to rent out the house in which they resided. As a result, petitioner moved to a new address located within the Buffalo City School District (“Buffalo address”). According to petitioner, her friend “is allowing [petitioner] to stay with her [at the Buffalo address] until [petitioner] is able to get a place to live.”
According to the record, on October 16, 2014, petitioner requested that the district change her mailing address to reflect the Buffalo address. The district registrar advised petitioner that she would need to enroll V.G. in the Buffalo City School District. Petitioner then stated that they were homeless and made a request to keep V.G. in the district based on homeless status. Petitioner met with the district’s Homeless Liaison (“liaison”), who helped her complete a “Designation of School District of Attendance for a Homeless Child” form. Petitioner noted on the form that the “date placed in permanent housing” would be November 1, 2014.
By letter dated February 3, 2015, respondent’s assistant superintendent of pupil personnel informed petitioner that the district was re-examining her homeless status claim and requested information establishing homelessness. Although petitioner did not respond to the request, her mother submitted a letter, which is date-stamped March 4, 2015, indicating that petitioner resided at her mother’s home until November 1, 2014, and that petitioner “was asked to move because I rented the house.”
By letter dated March 4, 2015, respondent’s superintendent notified petitioner of the district’s determination that the Buffalo address is petitioner’s “fixed, regular, and adequate nighttime residence” and that petitioner did “not meet the criteria for homeless status.” The letter further explained that the student would be excluded from the district’s schools after April 2, 2015. This appeal ensued. Petitioner’s request for interim relief was granted on April 24, 2015.
Petitioner claims that she and her children are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason, and are therefore homeless within the meaning of McKinney-Vento. Specifically, petitioner asserts that they reside with friends outside respondent’s district because their in-district residence was rented out to another person. Although it is not entirely clear from the petition, petitioner appears to assert that her living situation is temporary and that the Buffalo address is inadequate because the student “sleeps in the attic with her mother and younger brother [and] [d]oes not have her own room or bed to sleep in.”
Respondent asserts that the appeal should be dismissed as untimely and for lack of proper service. It maintains that the student is not homeless within the meaning of McKinney-Vento and asserts, among other things, that petitioner failed to show that the district’s determination was arbitrary, capricious, or contrary to law. Respondent claims that the family has been residing at the Buffalo address, a structure that contains two apartment units with three bedrooms in each unit, since in or around October 2014.
I must first address the procedural issues. 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). 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 K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).
Respondent argues that the appeal is untimely because it was commenced more than 30 days after its March 4, 2015 determination. While the record indicates that respondent notified petitioner of its determination by letter dated March 4, 2015, 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 11, 2015. Petitioner thus had to commence her appeal on or before April 10, 2015. According to the affidavit of service, the liaison served the verified petition on the district clerk on April 17, 2015.
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 Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877). Section 100.2(x)(7)(iii)(c)(4) requires that the homeless liaison assist the homeless child’s parent in commencing an appeal pursuant to Education Law §310 by, among other things, accepting service of the form petition and supporting papers on behalf of the school district if it is named as a party or by mailing the form petition and supporting documents to a person in the office of the superintendent who has been designated by the board of education to accept service on behalf of the school district.
The record indicates that, on or about March 6, 2015, petitioner contacted the liaison, who explained the appeal process to petitioner and that that V.G. could attend school until April 2, 2015. An affidavit from the liaison states that he also “provided [p]etitioner with the telephone number for the State Education Department’s Office of Counsel.” According to an affidavit from respondent’s district registrar, on March 31, 2015, V.G.’s father served the notice of petition and petition upon the district registrar, who was not authorized to accept service. The district registrar then delivered the package to the district clerk. By letter dated April 16, 2015, my Office of Counsel returned respondent’s affidavit in opposition to petitioner’s request for interim relief because it never received a properly filed petition. The liaison states that, on or about April 17, 2015, he discovered that petitioner never filed a petition with the State Education Department. As a result, he contacted petitioner and helped her revise and serve her petition. According to the affidavit of service, the liaison served the verified petition on the district clerk on April 17, 2015.
Respondent argues that petitioner improperly served the district registrar, who is not one of the individuals set forth in §§275.8(a) and 100.2(x)(7)(iii)(c)(4) of the Commissioner’s regulations on whom service upon a school district may be effected, and that petitioner did not timely deliver the petition to the liaison.
I note that, where a district disputes that a student is homeless, as in this case, it must follow the dispute resolution procedures established in Commissioner’s regulations, including providing the student and/or the student’s parents an opportunity to submit information before making a final determination (8 NYCRR §100.2[x][7][ii][a]). At the conclusion of this dispute resolution process, if the district determines that a student is not homeless, it must provide written notice that the student is not entitled to attend its schools and the basis for the determination (8 NYCRR §100.2[x][7][ii][b]). The notice must state that the determination may be appealed to the Commissioner of Education and must include the form petition for filing such an appeal (8 NYCRR §100.2[x][7][ii][b]). The notice must also contain the name and contact information for the school district’s homeless liaison, who is required to assist in filing such an appeal, including completing the form petition, and in accepting or arranging for service of the form petition (8 NYCRR §§100.2[x][7][ii][b], [iii][c][1],[2],[4] and [6]).
In this case, the record contains no evidence that respondent provided petitioner with the form petition, as required by the regulations (8 NYCRR §100.2[x][7][ii][b]). Although the superintendent’s March 4, 2015 letter contained notice of petitioner’s right to appeal and the liaison’s name and contact information, it does not appear to have included the form petition (see e.g., Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,107). The record indicates that, when petitioner contacted the liaison on or about March 6, 2015, he explained the appeal process to her and provided the telephone number for the State Education Department’s Office of Counsel; however, the record contains no evidence that he provided petitioner with the form petition, which petitioner apparently accessed and attempted to serve on or about March 31, 2015. It was not until April 17, 2015 that the liaison assisted petitioner in revising and serving her petition. Under these circumstances, I decline to dismiss the appeal as untimely or for lack of proper service (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608).
Turning to the merits, Education Law §3209(1) defines homeless child as follows:
(1) a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
(i) sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
(v) 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 nighttime location that is:
(i) a supervised publicly or privately operated shelter designed to provide temporary living accommodations including, but not limited to, shelters operated or approved by the state or local department of social services, and residential programs for runaway and homeless youth established pursuant to article nineteen-H of the executive law; or
(ii) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.
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.
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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
On the record before me, I find that V.G. does not fit the definition of a homeless child under State and federal law. Petitioner asserts that she and her two children are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason. In support of her argument, petitioner states that her family became homeless and relocated to her friend’s Buffalo address in October 2014 due to loss of housing after petitioner’s mother rented out their in-district residence. Petitioner asserts that V.G. “sleeps in the attic with her mother and younger brother” and that she “[d]oes not have her own room or bed to sleep in.” However, other than petitioner’s conclusory assertion, the record contains no evidence to indicate that such living arrangement is inadequate. According to the petition, petitioner and her two children are sharing housing with three other individuals. As respondent notes, the Buffalo address is a structure that contains two apartment units with three bedrooms in each unit. Petitioner did not submit a reply or any evidence to rebut this assertion or to explain how the living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,774).
Nor has petitioner established that her current residence is temporary or transitional. Petitioner asserts that her friend is “allowing her to stay with her until [petitioner] is able to get a place to live” within the district. However, the record indicates that petitioner and her children have been living outside the district since October 2014, and there is no evidence that petitioner needs to vacate her current residence or that there is a time limit as to how long she may reside there (see Appeal of Z.P. and D.P., 54 Ed Dept Rep, Decision No. 16,639).
Based upon the record before me, petitioner has failed to demonstrate that she and her children currently lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other temporary living accommodations set forth in Education Law §3209. Accordingly, I cannot find that respondent’s determination that petitioner’s child is not homeless was arbitrary or capricious.
In light of this disposition, I need not address the parties’ remaining contentions.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on her child’s behalf at any time and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE