Appeal of S.C., on behalf of her children J.A. and J.A., from action of the Board of Education of the Brentwood Union Free School District regarding residency and transportation.

Decision No. 17,710

(July 24, 2019)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel

ELIA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Brentwood Union Free School District (“district” or “respondent”) that her children (the “students”) are not eligible to attend the district’s high school tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The students were initially enrolled in respondent’s high school at the beginning of the 2018-2019 school year.  At that time, petitioner and the students — along with petitioner’s two nephews and their respective families — resided at an address located within the district (the “in-district residence”).  Petitioner asserts that she and the students were forced to vacate the in-district residence in December of 2018 after her nephew — whose name was on the lease for the house — decided not to renew the lease due to an increase in rent.  Subsequently, petitioner and the students moved to another nephew’s house (the “out-of-district residence”) located within the Central Islip Union Free School District (“Central Islip”).

On or about January 3, 2019, petitioner informed respondent’s coordinator of attendance and census (“coordinator”) of the students’ move to the out-of-district residence.  Shortly thereafter, petitioner removed the students from respondent’s high school and enrolled them in Central Islip.

According to the coordinator, petitioner returned to the district’s offices on January 18, 2019, and stated that a Central Islip employee informed her that the students may be entitled to attend respondent’s district as homeless students.  Respondent indicates that, based upon petitioner’s representations and in accordance with its legal responsibilities, it re-enrolled the students on or about January 24, 2019.

By letter dated January 30, 2019, the coordinator informed petitioner that the district had determined that neither she nor the students were homeless.  According to the coordinator, the district’s determination was based upon the fact that petitioner “willingly left the [in-district residence] to find ‘rent’ that was less than the $1000.00 [she was] paying.”  The coordinator further explained that the determination was based upon the fact that petitioner “found an apartment at [the out-of-district address] ... which include[d] an entrance, a back basement apartment, [and] separate living quarters,” thus rendering it “fixed, adequate and not temporary.”  Accordingly, respondent informed petitioner that the students were not entitled to enrollment in and/or transportation to the district.  This appeal ensued.

Petitioner alleges that she and the students are homeless as defined by McKinney-Vento because the out-of-district residence is temporary in nature.  Petitioner further alleges that she did not willingly move out of the in-district residence because the nephew whose name was on the lease made the decision.

Respondent contends that petitioner has failed to demonstrate that she and the students are homeless within the meaning of McKinney-Vento.

I must first address a procedural matter.  Petitioner has submitted a late reply in this matter.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Here, petitioner’s reply was served one day late.  Commissioner’s regulation §276.3 permits the Commissioner to allow an extension of time to answer the petition or reply to an answer upon good cause shown and upon such terms and conditions as the Commissioner may specify (8 NYCRR §276.3).  Although petitioner failed to request an extension of time to reply in accordance with §276.3 of the Commissioner’s regulations, I will accept her reply in light of the fact that she is proceeding pro se; that the delay of a single day was de minimis; and that there is no evidence that respondent was prejudiced by the delay (Appeal of Lombardo, 37 Ed Dept Rep 721, Decision No. 13,967).

Turning to 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 ....[1]

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 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).

Petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  Initially, petitioner has not shown that she was forced to leave the in-district residence due to a loss of housing or similar reason.  Petitioner asserts that, at the in-district residence, she split the rent three ways with two of her nephews, one of whom served as the primary point of contact with the landlord.  This nephew, according to petitioner, “made the decision not to renew” the rental agreement because the landlord had increased the rent.  However, petitioner has not submitted any evidence to corroborate these assertions, such as a copy of a rental agreement or an affidavit from the nephew who served as the point of contact with the landlord.  Although petitioner asserts that it was “not [her] will” to move, she has not proven on this record that she was forced to leave the in-district residence due to a loss of housing or similar reason, rather than a personal preference (Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108).

Further, petitioner has produced insufficient evidence to establish that she or the students lack a fixed, regular, and adequate nighttime residence or are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a) (see Appeal of Students with Disabilities, 55 Ed Dept Rep, Decision No. 16,826).  The record reflects that petitioner and the students reside at the out-of-district residence with petitioner’s nephew and his family.  The record further indicates that petitioner and the students live in a separate basement living space, which is removed from the home’s other living quarters.  Respondent’s coordinator asserts in an affidavit that petitioner described the out-of-district residence to him as having “a separate entrance, kitchen, bathroom, and a bedroom with two beds.”  This is corroborated by photographs of the out-of-district residence which petitioner has submitted on appeal, which depict an entrance, a kitchen, and a bedroom containing two beds.  Significantly, petitioner does not so much as allege on appeal that the current residence is inadequate.[2]  Therefore, petitioner has not met her burden of proving that the current residence is not fixed, regular, and adequate (see Appeal of V.B., 57 Ed Dept Rep, Decision No. 17,421; Appeal of D.W., 56 id., Decision No. 16,924).

Petitioner has also failed to demonstrate that the students’ living arrangement is temporary.  Petitioner asserts that the current residence is “temporary” because her nephew informed her that she and the students could only stay “for a short time,” because the nephew “is going through economic difficulties which forced him to stop paying [for] the house for a long time and most likely ... he will lose the house.”  Petitioner further asserts that, “[w]hen this happens, we will be homeless again.”  As proof of her claim that her nephew is at risk of losing the current residence, petitioner submits two mortgage account statements.  While these documents reflect substantial debt and delinquency regarding payments owed on the mortgage, they do not compel a finding that the out-of-district residence is temporary or transitional.  For purposes of determining homelessness under McKinney-Vento and Education Law §3209, the mere threat or prospect of foreclosure proceedings is insufficient to demonstrate that a residence is temporary or transitional (Appeal of T.L., 58 Ed Dept Rep, Decision No. 17,473; Appeal of R.D., 56 id., Decision No. 16,945; Appeal of S.D., 53 id., Decision No. 16,608).  Moreover, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).  Therefore, on this record, I cannot conclude that respondent’s determination that petitioner and the students are not homeless is arbitrary, capricious, or unreasonable.

Although the appeal must be dismissed for the reasons described above, 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