Decision No. 17,119
Appeal of L.P., on behalf of her children H.R and L.R., from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.
Decision No. 17,119
(July 7, 2017)
Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mamaroneck Union Free School District (“respondent”) that her children, H.G. and L.G. (the “children”), are not homeless within the meaning of the McKinney-Vento Homeless Assistance 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 2011, petitioner rented an apartment within the geographical confines of respondent’s district and enrolled her eldest child in the district using that address (“in-district apartment”). In 2014, she enrolled her other child using the same address.
In April 2016, petitioner requested transportation pursuant to McKinney-Vento for one of the children. Petitioner met with respondent’s homeless liaison and provided a letter from the in-district apartment’s landlord dated July 12, 2015. The letter stated that petitioner had to vacate the apartment within thirty days. Petitioner and the children then moved in with her father to his apartment, also located within the district. According to respondent, since petitioner’s father lived within the district, the children were permitted to continue enrollment in the district.
In the winter of the 2016-2017 school year, respondent was contacted by an anonymous source who stated that petitioner was living in an apartment located outside of the district. Thereafter, respondent employed its residency investigator (“investigator”) to determine petitioner and the children’s residence. According to an affidavit from respondent’s assistant superintendent for business (“assistant superintendent”), the investigator determined that petitioner was driving her children to and from a multi-family house outside the district (“out-of-district address”). The affidavit also states that the district requested that the investigator meet with petitioner to “determine if her current living arrangement was inadequate in any way and to discuss the circumstances surrounding her move to [the out-of-district residence].” The affidavit states that the investigator spoke with petitioner who advised him that she and the children left her father’s apartment because “someone was sick and they could no longer stay at the location.” Additionally, the affidavit states that petitioner told the investigator that she found her current apartment through a friend and is renting the apartment for $1300 per month. She also stated that she has two dogs which “made it more difficult to locate an apartment." Finally, the affidavit states that when the investigator attempted to conduct a site visit, petitioner prohibited him from entering the apartment.
By letter dated March 17, 2017, the assistant superintendent informed petitioner of his determination that she and the children had established residency outside of the district and no longer met the definition of homeless under State of federal law. The letter also stated that the children would be excluded from the district on April 18, 2017. This appeal ensued.
Petitioner claims that she and the children are homeless and therefore, should be allowed to continue attending school in respondent’s district. She asserts that she and the students were “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason” and that she and the children “had to leave due to health reasons.” Petitioner claims that she and the students are temporarily residing at the out-of-district address, that a relative is helping her pay rent and that she is “awaiting Section 8 housing to get back in [the] district permanently.”
Respondent contends that the appeal should be dismissed for failure to state a claim. Respondent also argues that that petitioner has failed to meet her burden of proof and asserts that the children are not homeless because they have a fixed, regular and adequate night-time residence which is not temporary or transitional. Finally, respondent argues that petitioner’s claim of economic hardship does not establish homelessness.
First, I must address a procedural issue. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
The appeal must be dismissed on the merits. At all times relevant to this appeal, Education Law §3209(1)(a) defined “homeless child” as:
(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;
(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....
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).
While previous circumstances may have made petitioner’s children eligible for services as homeless children under McKinney-Vento, petitioner has failed to meet her burden to show that the children are currently homeless under either State or federal law.
In the petition, petitioner asserts that she and the children lack a fixed, regular, and adequate night-time residence and were sharing the housing of other persons due to loss of housing, economic hardship or other similar reasons. Petitioner states that she and the children were temporarily residing with her father but had to leave his in-district apartment “due to health reasons.” Petitioner further states that she and the children are temporarily residing at the out-of-district address. She asserts that a relative is helping pay the rent, that she and the children are living in a basement in a house and that they are waiting for Section 8 housing to move back to the district permanently.
On this record, petitioner has failed to prove that the out-of-district address is inadequate, such that her children currently lack a fixed, regular and adequate night-time residence (see Appeal of R.V., 56 Ed Dept Rep, Decision No. 16,923; Appeal of Z.P. and D.P., 54 id., 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). In her reply, petitioner disputes respondent’s allegation that she lives in a multi-family house and asserts that she and her family are staying in a basement that is not intended to be used for residency. In support of her argument, petitioner submits a utility bill that is barely legible, but appears to indicate that the out-of-district address is being billed at non-residential rates. However, this alone is not sufficient to establish that the residence, which is being rented for a substantial sum, is inadequate. Petitioner has provided no actual description of the living arrangement and the record indicates that she has prevented respondent from inspecting the property to determine if it is adequate. Petitioner has provided no other evidence that the out-of-district address is inadequate and, under these circumstances, petitioner has failed to meet her burden of proof to establish that her residence is inadequate.
Moreover, petitioner has not established that her current residence is temporary or transitional. Petitioner asserts that a relative is helping to pay the rent and that she is awaiting Section 8 housing to move back into respondent’s district. While the record does contain evidence that petitioner is on the waiting list for the Section 8 Voucher Program, such evidence by itself does not establish that petitioner and her children are homeless under State or federal Law (Appeal of G.S. and M.S., 52 Ed Dept Rep, Decision No. 16,388). There is no evidence in the record that petitioner and the children need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).
Accordingly, I find 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.
END OF FILE
 Petitioner asserts that she was evicted from the in-district apartment. Petitioner does not dispute that after leaving the in-district apartment, regardless of the circumstances, she went to live with her father, who resides in the district.
 The record does not indicate whether the children received transportation between their grandfather’s house and the school or whether they were considered homeless under State or federal Law.
 Effective October 1, 2016, §11432(g)(3)(E)(i) of the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, now requires that if a dispute arises surrounding a child’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 U.S.C. §11432[g][E][i]). Therefore, no application for a stay in this appeal was necessary.
 Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (42 U.S.C. §11434a). Effective April 20, 2017, children or youth awaiting foster care placement are no longer included in the definition of “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017. However, those changes are not relevant to a determination in this appeal.