Decision No. 17,138
Appeal of S.Y., on behalf of her children, from action of the Board of Education of the Commack Union Free School District regarding residency and transportation.
Decision No. 17,138
(August 8, 2017)
Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Commack Union Free School District (“respondent”) that her two children (“the students”), are not homeless within the meaning of the McKinney–Vento Homeless Assistance Act (42 USC §11431 et seq.) (“McKinney-Vento”) and are, therefore, not entitled to attend the district’s schools or receive transportation. The appeal must be dismissed.
The petition asserts that the students have been living within respondent’s district for seven years. Petitioner asserts that she was forced to leave her apartment (the “in-district address”) because of multiple instances of stalking and harassment by strangers beginning in early October 2016. Thereafter, she moved into and “doubled up” in her parent’s home (the “out-of-district address”) for an unknown period of time. Petitioner claims that returning to the in-district address is not feasible because an alleged stalker lives nearby, the rent has since been raised beyond her financial abilities, and her hours at work have been reduced to only eight hours a week.
Apparently, sometime in January of 2017, respondent’s Assistant Superintendent of Schools for Business (“assistant superintendent”) learned that petitioner may not be living within the district, and conducted an investigation. The district learned that petitioner moved out of her in-district address on December 1, 2016, and surveillance of petitioner was conducted by respondent. Petitioner was notified by letter dated January 13, 2017 that the students were no longer legal residents of the district and that petitioner had until January 19, 2017 to submit additional information. Having received no additional information, by letter dated January 20, 2017, petitioner was notified that the students were deemed non-residents, effective on or about January 30, 2017.
Apparently, petitioner never responded to the January 20, 2017 letter, but on January 29, 2017, petitioner contacted the assistant superintendent and was reminded of the above determination and that petitioner should enroll the students in the school district serving the out-of-district address. No further response was received by the assistant superintendent. On January 31, 2017, in response to an email from one of her children’s school principals reminding petitioner that she should not send her child to the school the next day, petitioner responded that she “was not aware why this schould [sic] have been an issue when our place is in reno.”
On February 2, 2017, petitioner re-registered the students with respondent’s schools, asserting for the first time that they are homeless. Respondent asserts that petitioner also stated that she moved out of the in-district address because she was afraid and because renovations made at her apartment complex made the rent exorbitant. The students were re-enrolled in respondent’s schools based on the assertion of homelessness. By letter dated February 13, 2017, respondent determined that the students were not homeless as defined under McKinney-Vento and New York State Education Law §3209. Furthermore, respondent stated that petitioner provided no information to support the assertion that she is homeless or that her residing in the out-of-district address was temporary in nature, and this determination would go into effect on March 30, 2017. This appeal ensued.
Petitioner asserts that she and 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 and economic hardship or similar reason, as summarized above. Specifically, petitioner asserts that she lost her housing within the district, and that she and her children are temporarily residing with her parents (the students’ grandparents) outside of respondent’s district.
Respondent asserts that petitioner has failed to state a claim upon which relief can be granted, and that petitioner and her children do not meet the definition of homeless pursuant to McKinney-Vento under State or federal law. Specifically, respondent contends that the students do not meet the definition of a homeless child because they are not temporarily housed as defined by McKinney-Vento. Respondent further contends that petitioner has not provided any evidence that the residence is inadequate, temporary or transitional. Respondent also notes that petitioner raised homelessness as a claim only after the district’s January 20, 2017 determination that the students are not district residents.
I must first address a procedural issue. In a submission dated June 12, 2017, petitioner requests consideration of additional documents. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). Respondent raises no objection to these submissions. Therefore, while I have reviewed these additional submissions, 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.
Turning to 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).
Based on the record before me, I find that petitioner has failed to meet her burden to establish that the students are homeless under State or federal law. The record indicates that petitioner moved out of her in-district address in December 2016, approximately two months after the alleged stalkings and harassments began and also before her hours of employment were reduced in January 2017. The record further indicates that, subsequent to leaving the in-district apartment, petitioner and her two children moved into the home of petitioner’s parents outside of respondent’s district. While petitioner refers to being “doubled up” at her parent’s house and not having the “freedom like in your own home,” the petition does not include any description of the students’ current living arrangement and petitioner has provided no evidence that such residence is inadequate. Thus, petitioner has not met her burden of proving that the students lack a fixed, regular and adequate night-time residence (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of D.W., 55 id., Decision No. 16,812; Appeal of S.T., 53 id., Decision No. 16,619).
Moreover, petitioner has not established that her current residence is temporary or transitional. The record indicates that petitioner and her children have been residing at the out-of-district address since approximately December 1, 2016.
While petitioner makes conclusory allegations that her family’s current living situation is temporary and she does not yet have a permanent residence, she has not established that her current residence is temporary or transitional. It is clear that the out-of-district address is not the kind of shelter or other temporary accommodation described in Education Law §3209 (see e.g. Appeal of a Student with a Disability, 44 Ed Dept Rep 94, Decision No. 15,108). Moreover, there is no evidence in the record that petitioner or the students need to vacate the current residence or that there is a fixed time limit as to how long they may remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of P.B., 55 id., Decision No. 16,804; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).
Therefore, based upon the record before me, petitioner has failed to meet her burden of proving that the students lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a). Accordingly, I find that respondent’s determination that the students were not homeless was not arbitrary or capricious.
Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on behalf of her children at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The district asserts that “reno” was meant by petitioner as an abbreviation for “renovation.” Petitioner does not dispute this interpretation.
 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.
 This date is based on a report attached to a letter from the superintendent of petitioner’s apartment complex describing the condition of the apartment after petitioner left.
 The petition does not allege that the students are district residents or seek to challenge respondent’s January 20, 2017 determination that the students are not district residents. Instead, the petition specifically challenges respondent’s February 13, 2017 determination that the students are not homeless. Therefore, I make no determination as to whether the students are district residents.