Decision No. 17,143
Appeal of L.C., on behalf of her children L.W. and S.W., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.
Decision No. 17,143
(August 14, 2017)
Ingerman Smith, LLP, attorneys for respondent, Diana M. Cannino, Esq., of counsel
Elia, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that L.W. and S.W. (“the students”) 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 tuition-free or receive transportation. The appeal must be dismissed.
The record reflects that the L.W. originally enrolled in respondent’s district in January 2009 pursuant to McKinney-Vento.
In 2013, petitioner informed the district that she and L.W. had moved to a location in Hempstead, NY, which is outside of the district’s geographical boundaries (“Hempstead address”). The district continued to allow L.W. to attend its schools.
In October 2015, the district’s homeless liaison attempted to assess whether petitioner’s housing was temporary; however, petitioner refused to let the liaison view the inside of the residence.
By letter dated January 6, 2016, the district’s Director of Pupil Services (“director”) notified petitioner that L.W. was no longer eligible for enrollment under McKinney-Vento as the district did not believe that she and L.W. were residing in temporary housing or within the geographical confines of the district. Petitioner was invited to meet with the director on January 22, 2016 to discuss the factual basis for the district’s conclusion. Petitioner was also asked for documentary evidence relating to the family’s residence within the district or proof of temporary housing.
When petitioner did not show up for the January 22, 2016 meeting, the director and liaison called her. During the phone conference, the director explained respondent’s concerns and petitioner reported that she would be providing proof from an agency she was working with indicating that her housing was temporary.
Petitioner failed to provide the promised documentation, and after several attempts to contact her by phone, on or about February 12, 2016, the liaison sent a letter reminding her to forward the required documentation.
After not receiving any additional documentation and after several calls requesting such documentation were not returned by petitioner, the director sent petitioner a letter dated February 25, 2016 notifying her that she and L.W. no longer qualify as temporarily housed under McKinney-Vento and that L.W. would be excluded from school on June 24, 2016, the end of the school year. The letter indicated that petitioner had not submitted documentation that her living situation in Hempstead was temporary. This letter also indicated that, if petitioner disagreed with this determination and felt that her family continued to reside in temporary housing, she had 30 days in which to file an appeal with the Commissioner of Education. Petitioner was offered an opportunity to meet with the liaison to obtain more information and to receive assistance in the appeal process. She was also informed that, if she did not file an appeal, bussing for L.W. would be terminated on April 1, 2016.
On March 16, 2016, the liaison called petitioner to remind her that she was required to appeal respondent’s determination within 30 days. Petitioner did not return his call. On or about April 6, 2016, bussing was discontinued for L.W.
By letter dated April 15, 2016, the liaison advised petitioner that, because she failed to appeal respondent’s determination, L.W. would be excluded from respondent’s schools effective June 24, 2016. On June 24, 2016, L.W. was excluded from the district’s schools.
On or about September 1, 2016, petitioner attempted to enroll S.W. in respondent’s schools. She stated that she did not know that L.W. was excluded from school in June. She further stated she was now living within the district in Baldwin (“Baldwin address”) with her aunt.
On or about September 2, 2016, the liaison made a home visit to the Baldwin address with a school social worker. Petitioner was not present and a boy who answered the door stated that L.W. and his family did not reside there.
On or about September 7, 2016, the liaison spoke with petitioner and explained that she needed to provide documentation indicating that she was now residing at the Baldwin address. On September 12, 2016, prior to the start of the school day at 8:00 a.m., the liaison made another home visit to the Baldwin address but there was no answer and no one was home.
On or about September 13, 2016, the liaison and director called petitioner again to ask for proof that she was residing at the Baldwin address but she failed to provide such proof.
On or about September 19, 2016, a letter from The Safe Center Long Island was hand delivered to the respondent indicating that petitioner came to the center on July 15, 2015 due to a history of domestic abuse. The letter also stated that petitioner had recently changed her address to the Baldwin address in order to continue to avoid the domestic situation. Such letter did not specify if the agency was currently working with petitioner, only that it had done so in 2015.
On or about September 20, 2016, the liaison spoke with an employee of the New York State Technical and Education Assistance Center for Homeless Students (“NYS-TEACHS”) who informed him that she had spoken with petitioner and that she believed that petitioner’s claimed current residence at the Baldwin address was not temporary. On or about September 21, 2016, the liaison called NYS-TEACHS again. He was told that, since petitioner had asserted that she was running from a domestic situation, she could be considered temporarily housed and the district should allow the students back in school.
On or about September 22, 2016, the liaison spoke with petitioner and also emailed her to inform her that the students would be enrolled in school. Petitioner was also notified that she would be receiving an exclusion letter because respondent did not believe that she resided in respondent’s district.
By letter dated September 23, 2016, the director notified petitioner that the students would be immediately enrolled in respondent’s schools but that after a review of the records, he did not believe that petitioner resided at the Baldwin address. Petitioner was also notified that if she failed to appeal respondent’s determination, the students would be excluded as non-residents on October 24, 2016.
On or about September 26, 2016 at 8:15 a.m., the liaison hand-delivered the statutory homeless appeal form to the Baldwin address and also mailed it. Neither petitioner nor the students were there. On or about October 7, 2016, the liaison spoke with petitioner and she agreed to meet with him on Tuesday, October 11, 2016 at 8:00 a.m. regarding the appeal process. She failed to show up for that meeting.
On or about October 14, 2016, both students were absent from school. The liaison made a home visit to the Baldwin address to speak with petitioner and remind her of the appeal process. Again, no one was home. On or about October 18, 2016, the liaison emailed petitioner with another reminder about the appeal timeline. This appeal ensued.
Petitioner alleges that L.W. and S.W. are homeless within the meaning of McKinney-Vento. She asserts that they are currently residing with family at the Baldwin address due to a domestic violence situation.
Respondent maintains that petitioner is not homeless within the meaning of McKinney-Vento, nor does she permanently reside within respondent’s district.
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;
(v)a migratory child ... who 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 not met her burden of proving that her children are homeless children entitled to attend respondent’s schools under either State or federal law. Petitioner states in a conclusory fashion that she and her children “are currently residing with family due to a domestic violence situation.” In her petition, she identifies her current address as the Baldwin address. She attaches to her petition a Nassau County Supreme Court temporary order of protection dated August 5, 2016, but provides no explanation as to how the order of protection substantiates her homeless claim, other than her conclusory allegation that she is “doubled with family due to a domestic violence situation.” She also provides no evidence to corroborate her allegation that she has relocated to the Baldwin address. The record reflects that petitioner originally requested, and was granted, homeless status for her children in 2009 when she resided outside the district, and again in 2013 when she relocated to Hempstead, well before the order of protection was issued. The record also reflects, however, that respondent determined on February 25, 2016 that petitioner and her children were no longer temporarily housed and were no longer homeless. As noted, at that point petitioner was living in Hempstead. No appeal was taken from respondent’s determination.
The petition is silent about the date on which petitioner purportedly moved to the Baldwin address, though it appears from the record that the first time petitioner apprised respondent of the alleged move was on September 1, 2016. As noted above, a letter dated September 19, 2016 from The Safe Center Long Island stated that petitioner “recently changed her address” to the Baldwin address, which suggests that the purported move occurred within a few weeks prior to September 1, 2016.
At the time of petitioner’s purported move back to the Baldwin address, therefore, petitioner’s son, L.W., had been excluded from respondent’s schools previously and was not legally entitled to attend respondent’s schools because petitioner had not appealed respondent’s February 26, 2016 determination that she and her children were no longer homeless. That determination was final and binding on petitioner, and constituted a determination by respondent that petitioner and the students were permanently housed at the Hempstead address. Under these circumstances, I find that respondent’s school district is not the “[s]chool district of origin” within the meaning of Education Law §3209(1)(c). Even assuming that petitioner and her children had become homeless when they allegedly moved to the Baldwin address due to domestic violence around the time she first apprised respondent of this alleged move on September 1, 2016, the school district which petitioner’s children were entitled to attend as the district of origin at that time would, on this record, appear to be the Hempstead Union Free School District.
In any event, on this record, petitioner has failed to prove that she and her children actually moved from the Hempstead address to the Baldwin address. Petitioner has provided no evidence to corroborate her conclusory allegation that she and the students currently reside at the Baldwin address. The record indicates that respondent repeatedly requested documentation that petitioner was residing at the Baldwin address and received none. Respondent’s staff attempted four home visits in the early mornings on school days and petitioner and the students were not present at the Baldwin address on any of those days. While respondent’s evidence is not overwhelming, petitioner has not submitted a reply or otherwise explained why she and her children were absent from the Baldwin address on each of those four mornings. On this record, petitioner has failed to meet her burden of proving that she has established a temporary housing arrangement at the Baldwin address within respondent’s school district. Accordingly, I find that petitioner has failed to establish that respondent’s school district is a “[s]chool district of current location” within the meaning of Education Law §3209(1)(d).
Accordingly, I find that petitioner has failed to establish that her children are entitled to attend respondent’s school district without payment of tuition and the appeal must be dismissed.
Even had petitioner proved that she and her children are actually residing at the Baldwin address, the appeal would still be dismissed. The petition contains no description of the Baldwin address and petitioner has provided no evidence to indicate that such residence is inadequate, or that the alleged living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209. Therefore, petitioner has failed to meet her burden of proving that her children lack a fixed, regular and adequate night-time residence (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).
Similarly, petitioner has not provided any evidence addressing whether the purported Baldwin address is temporary or transitional. The petition contains no allegation that the family needs to vacate such 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 A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).
While I sympathize with petitioner’s situation, I cannot find on the record before me that respondent’s determination that petitioner’s children are not homeless to be arbitrary or capricious.
Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to re-apply 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
 In its verified answer, respondent asserts that S.W. had never attended respondent’s schools prior to her enrollment in September 2016, and that S.W. had been enrolled in the Hempstead Union Free School district for the 2015-2016 school year.
 Effective October 1, 2016, §11432(g)(3)(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.