Appeal of J.L., on behalf of her children A.G., A.G., and K.G., from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency and transportation.

Decision No. 17,685

(July 3, 2019)

Ingerman Smith, LLP, attorneys for respondent, David F. Kwee, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that her children, A.G., A.G., and K.G. (“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 or receive transportation.  The appeal must be dismissed.

Prior to August 2017, petitioner and her children resided within respondent’s district and the students attended respondent’s schools.  At some point in August 2017, for economic reasons, petitioner and the students moved out of their residence within the district (the “in-district residence”) and moved in with petitioner’s parents at a residence located outside of the district (the “out-of-district residence”).

In an affidavit submitted in connection with this appeal, respondent’s business administrator asserts that, “[i]n or about August 30, 2017, we learned that Petitioner was residing at her current home outside the District ....  [Petitioner] reported to us that she had moved to the [out-of-district residence], by requesting continued enrollment in the District, as well as transportation ... on account of the Petitioners claiming to have become homeless.”

The business administrator further asserts in his affidavit that “pending a full investigation into Petitioners’ living situation, the the [sic] District granted Petitioners the benefits associated with homelessness, including transportation between the [out-of-district residence] and the District under McKinney-Vento.”  Thus, the students attended respondent’s schools during the 2017-2018 school year.

On or about June 19, 2018, the business administrator conducted a home visit of the out-of-district residence.  By letter dated June 19, 2018, he notified petitioner that the students would be excluded from respondent’s schools on June 30, 2018 because they were neither district residents nor homeless pursuant to McKinney-Vento.  Instead, the letter noted, petitioner and her children resided at the out-of-district address, where they had “a fixed, regular and adequate night time residence.”  The letter offered petitioner an opportunity to meet with the business administrator to discuss the determination and to present any additional evidence that she and the children resided in the district or were homeless within the meaning of McKinney-Vento.  The business administrator states in his affidavit that he met with petitioner on June 21, 2018, but that petitioner “did not submit any additional evidence of her alleged homelessness ....”

By letter dated June 29, 2018, the business administrator informed petitioner that the students were neither district residents nor homeless pursuant to McKinney-Vento and, therefore, would be excluded from respondent’s schools on June 30, 2018.  The business administrator’s letter, which was hand-delivered to the out-of-district residence on June 29, 2018, advised petitioner of her right to appeal the decision to the Commissioner of Education within 30 days; the letter further advised petitioner that the district’s homeless liaison was available to assist her in filing such an appeal.  This appeal ensued.

Petitioner asserts that the students are homeless because they live with petitioner’s parents due to a loss of housing and economic hardship and lack a fixed, regular and adequate nighttime residence.

Respondent asserts that petitioner fails to state a claim upon which relief may be granted and that the appeal is untimely.  Respondent maintains that petitioner and the students have resided with petitioner’s parents at the out-of-district address for more than a year, and that the out-of-district address “lacks the transitional nature necessary to permit Petitioners to be deemed homeless.”

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Respondent’s final determination from which petitioner appeals was made on June 29, 2018 and the record indicates that the letter containing such determination was hand-delivered to petitioner that same day.[1]  Petitioner did not commence this appeal until August 22, 2018.  Petitioner does not assert good cause, or any cause, to excuse the delay in commencing the appeal (see 8 NYCRR §275.16).  Therefore, the appeal must be dismissed as untimely (see e.g. Appeal of J.D., 58 Ed Dept Rep, Decision No. 17,459; Appeals of L.B., 50 id., Decision No. 16,129).

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.

Education Law §3209(1)(a) defines “homeless child” as:

1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
3. abandoned in hospitals; or
4. 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;
5. an unaccompanied youth ...; or

2. a child or youth who has a primary nighttime location that is:

1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....[2]

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).

Based on the record before me, petitioner has not established that the students meet the definition of a homeless child under either State or federal law.  In the petition, 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 other similar reasons.  The petition indicates that petitioner and the students are living with petitioner’s parents outside respondent’s district.  Petitioner states: “The apartment has 3 bedrooms and 1 bathroom.  My mother has given me her room, her bed, and her furniture for me and my children to use ....  My mother doesn’t charge me for rent or any bills.”  In his affidavit, the business administrator asserts that, during the June 19, 2018 home visit of the out-of-district residence, he “observed the apartment to be a comfortably furnished three bedroom apartment.  The living room contained traditional living room furniture, and [was] well decorated.  The apartment also ha[d] a kitchen and a separate dining area.”  He further asserts that petitioner “and the rest of the family appeared to have full use of, and access to, all common areas in the apartment, meaning that it did not appear as if the apartment was divided and shared by anyone outside the family.”  Therefore, on this record, I find that petitioner has not met her burden of proving that her current residence is inadequate (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeal of A.M., 57 id., Decision No. 17,146; Appeal of D.W., 56 id., Decision No. 16,924).

Moreover, petitioner has not established that her current residence is temporary or transitional.  Petitioner asserts that she has “been looking for places, but everything is expensive.”  However, there is no evidence in the record that petitioner and the children need to vacate their current residence (where they have lived for more than one year) or that there is a fixed time limit as to how long they may remain.  In his affidavit, the business administrator asserts that during his June 2018 home visit, petitioner told him that “she has no concerns about the stability of her current living arrangements ...” (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeal of V.C.B., 56 id., Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987).

Accordingly, based on the record before me, I find that petitioner has not met her burden of proving that the students lack a fixed, regular and adequate nighttime residence.  Therefore, respondent’s determination that the students are not homeless was not arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on the students’ behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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