Decision No. 17,702
Appeal of Z.B, on behalf of her children Z.B. and Z.B., from action of the Board of Education of the City School District of the City of Long Beach regarding residency and transportation.
Decision No. 17,702
(July 22, 2019)
Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel
ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Long Beach (“respondent”) that her children Z.B. and Z.B. (“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.
Although the record is not entirely clear, it appears that petitioner’s children have been enrolled in respondent’s schools intermittently since 2011. The record indicates that petitioner’s son, Z.B., was first enrolled in respondent’s district during the 2010-2011 school year as a fourth grade student. However, respondent later made a determination that petitioner and the student were not district residents and the student was disenrolled as a nonresident on October 26, 2011.
According to the record, petitioner re-enrolled her son Z.B. and enrolled her daughter Z.B. as a new student in respondent’s district on February 24, 2011. A subsequent residency investigation revealed that petitioner and the students were not district residents; consequently, the students were excluded from respondent’s schools on October 6, 2014. However, the record indicates that the students were re-enrolled as homeless students under McKinney-Vento on or about October 21, 2014. The students remained enrolled as homeless students for the remainder of the 2014-2015 school year and for the duration of the 2015-2016 school year.
In the spring of the 2016-2017 school year, respondent conducted a residency investigation and determined that petitioner and the students were residing in a fixed, regular, and adequate residence outside of respondent’s district. While not entirely clear, it appears that petitioner and the students subsequently moved to another residence outside of the district. Respondent conducted another residency investigation whereby it determined that the second out-of-district residence was fixed, regular and adequate. Nevertheless, respondent permitted the students to remain enrolled for the duration of the 2016-2017 school year and the beginning of the 2017-2018 school year.
The record indicates that, on or about February 14, 2018, petitioner informed respondent that she and the students were residing in a third out-of-district address with a friend. Respondent alleges that its investigation revealed that the third out-of-district address was fixed, regular and adequate, and there was no limit on how long petitioner and the students could remain. By letter dated June 29, 2018, respondent informed petitioner that the students were no longer eligible to remain enrolled as homeless students. Respondent indicates that the students were disenrolled effective July 29, 2018.
The record indicates that respondent re-enrolled Z.B. and Z.B. on September 12, 2018. By letter dated September 18, 2018, respondent notified petitioner that the evidence indicated that she and the students resided in a fixed, regular and adequate location outside of respondent’s district. The letter advised petitioner that the students were not entitled to attend the schools of the district as homeless students and that she could appeal such determination to the Commissioner of Education within 30 days. The letter noted that failure to file such an appeal would result in the students’ exclusion from school on October 18, 2018. Despite this exclusion letter, respondent continued to permit the students to attend its schools. By letter dated January 16, 2019, respondent again advised petitioner that the students were ineligible to attend its schools and would be excluded on January 18, 2019. This appeal ensued. Upon receipt of the instant petition on January 28, 2019, the record indicates that respondent readmitted the students.
Petitioner contends that she is sharing the housing of others due to loss of housing and economic hardship. Petitioner asserts that her children are currently staying with different friends, separate and apart from petitioner. Petitioner asserts that she does “not have a stable residence to lay my head every night but I make it work.”
Respondent asserts that the petition should be dismissed as untimely, for failure to state a claim, for failure to prove that the students are homeless within the meaning of McKinney-Vento, and because respondent’s determination was neither arbitrary nor capricious.
I must first address a procedural matter. Initially, respondent asserts that 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 asserts that petitioner had 30 days from the June 29, 2018 letter to appeal its decision. However, the record clearly indicates that petitioner re-enrolled the students on September 12, 2018. Although respondent subsequently issued two more letters on September 18, 2019 and January 16, 2019, indicating that the students were ineligible to attend its schools, respondent continued to allow the students to attend its schools until January 18, 2019. As a result, petitioner had 30 days to commence the appeal from petitioner’s receipt of the final determination letter dated January 16, 2019, which excluded the students effective January 18, 2019. The record indicates that respondent’s homeless liaison accepted service of the petition on January 28, 2019, well within 30 days of respondent’s final determination. As a result of the foregoing, I decline to dismiss the appeal as untimely.
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).
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.
On this record, petitioner has not met her burden of proving that the students fit the definition of a homeless child under either State or federal law. While petitioner alleges 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, petitioner offers no evidence to support this claim other than conclusory assertions. Petitioner asserts that Z.B. and Z.B. are residing with different friends, and that she does not have a stable place to sleep each night. However, the petition contains no description of petitioner’s current living arrangements and does not address respondent’s repeated assertions, made in its June 29, 2018, September 18, 2018 and January 16, 2019 letters, that she and her children reside at the fixed, regular and adequate third out-of-district address. Petitioner has provided no evidence that the third out-of-district address is in fact inadequate or is temporary or transitional and has provided no explanation of why her children cannot be housed there. Petitioner makes only general statements that her homeless status is the result of domestic violence and economic hardship; however, petitioner offers no evidence to support such claims (see Appeal of Laventure-Louis and Louis, 56 Ed Dept Rep, Decision No. 17,027). Without proof, petitioner’s conclusory statements are insufficient to meet her burden of proof on this issue (see Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804; Appeal of a Student with a Disability, 53 id., Decision No. 16,621).
While I am sympathetic to petitioner’s situation, based upon the record before me, petitioner has failed to demonstrate that she and her children currently lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other temporary living accommodations set forth in Education Law §3209. Accordingly, I cannot find that respondent’s determination that the students are not homeless was arbitrary or capricious.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The factual allegations described herein, derive from an unsworn statement submitted by respondent’s executive director for pupil personnel services. Although the statement is unsworn – and, consequently, entitled to less evidentiary weight – petitioner has not set forth any information concerning the relevant history between the parties, let alone contradictory facts or assertions. Under these circumstances, I will accept the unsworn statement into the record and afford it the appropriate weight which it is due as an unsworn statement (see Appeal of M.S., 58 Ed Dept Rep, Decision No. 17,430; Appeal of J.D., 57 id., Decision No. 17,295).
 While the record is not entirely clear, it appears that petitioner attempted to contact respondent during the summer of 2018 regarding summer school transportation for her son Z.B. However, the record is devoid of any information on whether or not such summer school services were provided to her son Z.B.
 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.