Appeal of R.V., on behalf of her children B.V., B.D., and I.C., from action of the Board of Education of the Elwood Union Free School District regarding residency.

Decision No. 16,923

(July 13, 2016)

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

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Elwood Union Free School District (“respondent”) that her children, B.V., B.D., and I.C., (the “students”), are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431, et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools.  The appeal must be dismissed.

In the spring of 2014, petitioner informed the district that she and the students had temporarily moved from an address within respondent’s district into a friend’s house in Hempstead.  The record is unclear as to whether the students were identified at that time as homeless, within the meaning of McKinney-Vento.  However, respondent continued to provide the students with transportation to its schools from the friend’s house until January 2015 when petitioner informed the district that a pipe had burst and she and I.C. moved to a residence located in Roosevelt, outside of the district (“out-of-district residence”).  B.V. and B.D. apparently stayed with their grandmother who resides within the district.  For the remainder of the 2014-2015 school year, respondent provided I.C. with transportation from the out-of-district residence. 

In the fall of the 2015-2016 school year, respondent continued to provide I.C. with transportation from the out-of-district residence to its schools. In November 2015, respondent received information that B.V. and B.D. had also moved to the out-of-district residence and, thereafter, transportation was provided for all three students. 

According to respondent, “[a]fter repeatedly trying to ascertain [p]etitioner’s residency status to no avail,” its assistant superintendent for business/homeless liaison (“liasion”) commenced a residency investigation. According to respondent, on November 10, 2015, representatives from a private investigation company retained by respondent went to the out-of-district residence and were told that petitioner was at work and the students had already left for school.

By letter dated January 15, 2016, the liaison notified petitioner that an informal conference to discuss petitioner’s residency status was scheduled for January 25, 2016.  The letter advised petitioner that the district understood that petitioner was moving back into the district and that she should bring any supporting documentation.  Petitioner failed to attend the informal conference and, according to the liaison, she was unable to contact petitioner to reschedule. 

The investigation company conducted surveillance at the out-of-district residence early in the morning on February 2 and 3, 2016, and observed the students leaving the residence and boarding school buses.  By letter dated February 9, 2016, the liaison notified petitioner that surveillance had been conducted and that her residence, where she had been living for a year, is fixed, adequate and regular.  The letter stated that, therefore, the students were not homeless within the meaning of McKinney-Vento and would be excluded from the district as of March 14, 2016.  The letter also notified petitioner of the opportunity for an informal conference on February 22, 2016, to discuss the district’s determination.  The letter further advised petitioner to bring any documentary evidence she might have relating to her actual domicile within the district, if that were the case, for consideration.  On February 22, 2016, petitioner rescheduled the meeting for February 29, 2016, but did not attend the rescheduled meeting. 

By letter dated March 1, 2016, the liaison notified petitioner that, since she did not attend the informal conference, the determination in the February 9, 2016 letter was final and the students would be excluded from the district as of March 14, 2016.  The letter advised petitioner of her due process rights; the liaison enclosed a form petition and offered to assist petitioner in filing the appeal.  Petitioner did not avail herself of such assistance.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 17, 2016.

Petitioner contends that the students are homeless because they lack a fixed, regular and adequate night-time residence and are sharing the housing of other persons due to loss of housing.  On the form petition, petitioner indicates that the students’ primary nighttime location is a supervised, publicly or privately operated shelter designed to provide temporary living accommodations.  She requests that the students be permitted to attend school in respondent’s district without the payment of tuition and a determination that the students are entitled to transportation.

Respondent asserts that the petition must be dismissed on procedural grounds, including improper service and lack of verification.  Respondent also contends that the petition must be dismissed for failure to state a claim upon which relief may be granted.  Respondent contends that petitioner and the students have lived at the out-of-district residence since January 2015, and that such residence is fixed adequate and regular and that, consequently, petitioner has failed to provide any evidence that the students are homeless under State and federal law.

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. According to the affidavit of acceptance of personal service, the liaison accepted service on March 11, 2016.  Therefore, I decline to dismiss the petition for improper service upon respondent.  

However, according to respondent, petitioner “initially submitted incomplete appeal paperwork” on March 10, 2016, and the liaison “made several attempts to contact [p]etitioner on Friday, March 11, 2016, to no avail.”  The liaison then forwarded the incomplete, unexecuted petition to my Office of Counsel. 

Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  Pursuant to §275.5(b) of the regulations, in an appeal regarding a homeless child pursuant to §100.2(x) of the Commissioner’s regulations, the parent may, in lieu of the verification pursuant to §275.5(a) of the regulations, include a signed statement indicating that the information contained in the petition is true and acknowledging the consequences under the Penal Law for offering a false statement (“statement”).  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The statement attached to the petition before me is not signed and, therefore, does not comply with §275.5(b).  Thus, the appeal must be dismissed for lack of verification.  

Education Law §3209(1)(a) defines “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:

(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;

(iii)abandoned in hospitals;

(iv)awaiting foster care placement; or

(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 ...; 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). 

Petitioner’s children do not fit the definition of a homeless child under either State or federal law. Petitioner alleges that she and the students lack a fixed, regular, and adequate night-time residence and also that she and the students are living in a shelter designed to provide temporary living accommodations. However, there is no evidence on the record to support that claim, other than petitioner’s conclusory assertions.  The record reflects that petitioner is currently living in a home outside respondent’s district and has been since January 2015. 

The petition asserts that the out-of-district residence is temporary and that she and the students “have nowhere to go as in (sic) April 1, 2016.”  However, petitioner has not submitted any evidence in support of that assertion.  While previous circumstances may have made petitioner’s child eligible for services as a homeless child under McKinney-Vento, this petition is devoid of any evidence that petitioner’s child currently lacks a fixed, regular and adequate night time residence and is homeless (see Appeal of Z.P. and D.P., 54 Ed Dept Rep, Decision No. 16,639; Appeal of T.C., 53 id., Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).   Accordingly, based on the record before me, I am constrained to find that petitioner has not met her burden, and that respondent’s determination that petitioner’s children are not homeless was not arbitrary or capricious.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s schools on her children’s behalf at any time, and to submit any documentary evidence for respondent’s consideration. 

THE APPEAL IS DISMISSED.

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