Decision No. 17,669
Appeal of C.H., on behalf of her children A.H. and O.H., from action of the Board of Education of the Mayfield Central School District regarding residency and transportation.
Decision No. 17,669
(July 1, 2019)
Girvin & Ferlazzo, PC, attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel
ELIA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Mayfield Central School District (“respondent”) that her children (“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.
Although the record in this appeal is sparse, it reflects that, at the start of the 2018-2019 school year, petitioner enrolled her children as homeless students in respondent’s district; prior to that time, the children attended school as resident students in another district. By letter dated November 8, 2018, respondent’s director of student services (“director”) informed petitioner of her determination that the students were neither district residents nor homeless and, therefore, were not entitled to attend the district’s schools. The director further informed petitioner that if she did not appeal the district’s determination to the Commissioner of Education within 30 days, the decision to exclude her children from the district’s schools would become effective on December 21, 2018. This appeal ensued.
Petitioner contends that she and the students 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, at some point prior to the start of the 2018-2019 school year, she and the students were forced to leave the home in which they had resided with petitioner’s husband because he was “abusive” and had created an “unsafe environment” for them. Petitioner asserts that she and her children “are living with [her] parents [within the district] until [she] can find something in [respondent’s] school district.” Petitioner seeks a determination that the students are homeless within the meaning of McKinney-Vento and, thus, entitled to attend respondent’s schools, tuition-free.
Respondent did not submit a timely answer in this appeal, but requested permission to submit a late answer pursuant to §275.13 of the Commissioner’s regulations. A late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589). In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).
In a letter to my Office of Counsel, dated December 12, 2018, respondent’s counsel wrote, “[a]t this time I write to request an extension of time for the District to file their Answer in [this] matter. The petition was served on November 13, 2018. However, the supporting documents were not served until November 26, 2018.” In a subsequent letter to my Office of Counsel, dated January 23, 2019, respondent’s counsel wrote: “[t]he District’s answer was filed on December 12, 2018, along with a letter requesting permission to file late, due to the District’s failure to provide us the Petition in a timely manner ....”
Although it is unfortunate that respondent failed to provide its attorneys with the complete petition in a timely manner, I decline to deem this a sufficient excuse for the late answer (see Appeal of Brarens, et al., 51 Ed Dept Rep, Decision No. 16,317). While I recognize that where, as here, a dispute arises surrounding the students’ McKinney-Vento eligibility, the students are entitled to immediate enrollment in respondent’s district pending final resolution of the dispute, including all available appeals, I find that respondent has not established a sufficient excuse for its late answer on this record. Therefore, I have not accepted respondent’s late answer, and the factual statements in the petition are deemed to be true (Appeal of Young, 58 Ed Dept Rep, Decision No. 17,523).
Turning to the merits, Education Law §3209(1)(a) defines “homeless child” as:
- a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
- sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
- living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
- abandoned in hospitals; or
- a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
- an unaccompanied youth ...; or
- a child or youth who has a primary nighttime location that is:
- a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
- 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
On the record before me, petitioner has not established that the students meet the definition of homeless children under State or federal law. Petitioner asserts that she and the students lack “a fixed, regular, and adequate nighttime residence” and are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.” She states: “I the mother of [A.H. and O.H.] had to move in with my parents do [sic] to a [sic] abusive relationship I had to get out of. We are living with my parents until I can find something in [respondent’s] school district.” In the sole exhibit included with her petition, petitioner submits an undated letter from her father, in which he writes, “[m]y daughter [C.H.] and her kids [A.H. and O.H.] live here in are [sic] home [in the district]. [C.H.] pays rent.” Petitioner, however, fails to provide any details or evidence concerning the adequacy of the students’ living conditions (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146). The mere assertion that a parent and student are sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).
Additionally, petitioner does not assert, and there is no evidence in the record suggesting, that petitioner or the students need to vacate the residence or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129). As indicated above, the letter from petitioner’s father indicates that petitioner and the students are staying with him and petitioner’s mother, but identifies no conditions or time limitations in connection with petitioner’s stay.
Therefore, based upon the record before me, petitioner has failed to demonstrate that she and the students lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a). Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.
I further note that while petitioner challenges respondent’s determination that she and her children are not homeless within the meaning of McKinney-Vento, she also asserts that they currently reside in her parents’ home, which is located within respondent’s district. Therefore, although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on the students’ behalf at any time on the basis of their alleged residence within respondent’s district, or on the basis of a change in circumstances, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Pursuant to my discretion under §276.5 of the Commissioner’s regulations, I have accepted respondent’s November 8, 2018 exclusion letter which was attached as an exhibit to respondent’s answer even though, as explained herein, I have not accepted the remaining portions of the answer. In this respect, I note that, while the form petition submitted by petitioner instructs individuals completing the form to “[a]ttach [a] copy of denial if available,” petitioner did not do so in this case.
 Respondent further asserted that my Office of Counsel “had granted permission to file late....” As noted in a letter dated February 13, 2019, from my Office of Counsel to respondent’s counsel, the Office of Counsel “has no record of having granted an extension of time for respondent’s answer.” My Office of Counsel subsequently requested clarification regarding the alleged extension request. Counsel for respondent did not respond to this request.
 Education Law §3209(1)(a-1) excludes from the definition of “homeless child” a child in a foster care placement or receiving educational services under certain provisions of Education Law §3202 or Articles 81, 85, 87 or 88 of the Education Law, circumstances not presented in this appeal.