Appeal of T.R., on behalf of her son J.R., from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency.

Decision No. 17,794

(November 20, 2019)

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

TAHOE., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that her son J.R. (“J.R.”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools.  The appeal must be sustained.

Petitioner and her children resided within respondent’s district – where J.R. attended school as a resident student – until August 2016, when, following petitioner’s loss of employment, they moved into her parents’ one-bedroom, co-operative apartment (“co-op”) outside the district.  Thereafter, J.R. apparently continued to attend school in the district, although it is unclear from the record whether respondent expressly deemed J.R. to be a homeless student.

By letter dated June 10, 2019, respondent’s business administrator (“the administrator”) notified petitioner that J.R. would be excluded from the district’s schools because petitioner was not a district resident, and J.R. was not homeless within the meaning of McKinney-Vento.  Petitioner, the administrator, and respondent’s then-homeless liaison (“the liaison”) met on June 13, 2019 to afford petitioner the opportunity to present documentary evidence regarding her living situation.  Thereafter, the administrator sent petitioner a letter dated June 14, 2019, upholding the determination to exclude J.R. from the district’s schools, effective July 15, 2019.  This appeal ensued.

Petitioner claims that J.R. is homeless within the meaning of McKinney-Vento because she and her two children are sharing the housing of other persons due to a loss of housing, economic hardship, or a similar reason.  Specifically, petitioner asserts that she has been unable to move out of her parents’ one-bedroom co-op — where she and her children sleep in the living room — because of her ill health, which has prevented her from working since 2016.

Respondent contends that the petition must be dismissed because petitioner failed to serve respondent with copies of the exhibits to the petition.  Respondent additionally avers that J.R. is not homeless within the meaning of McKinney-Vento because petitioner has not established that her parents’ co-op is not a fixed, regular, and adequate nighttime residence.

First, I must address respondent’s procedural challenge.  8 NYCRR §275.8(a) dictates that “[a] copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, ... shall be personally served upon each named respondent ....”  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  Under section 100.2(x)(7)(iii)(c)(4) of the Commissioner’s regulations, a district’s homeless liaison must assist a homeless child's parent in commencing an appeal pursuant to Education Law §310 by, among other things, accepting service of the petition and supporting papers on behalf of the school district or by mailing the petition and supporting papers to the person who has been designated to accept service on behalf of the district.[1]

Respondent maintains that petitioner’s service of the petition was improper because she failed to include copies of the exhibits.  Notably, respondent indicates that, after service of the petition, it received “exhibits that appear to have come in the mail [and] may be applicable to [p]etitioner’s case.”  Although respondent posits that these exhibits may not be the same as the exhibits that petitioner filed with my Office of Counsel, respondent’s description of the exhibits it received is consistent with the exhibits received by my Office of Counsel.

In her reply, petitioner asserts that she made repeated, unsuccessful attempts to contact the liaison prior to service of the petition.  Specifically, petitioner indicates that she attempted to meet with the liaison on July 12, 2019, but was advised that the liaison was not at the district office.  Petitioner states that, because the liaison was unavailable, she instead met with the administrator and presented him with her petition and exhibits; however, the administrator declined to review the exhibits and “only copied the appeal forms.”

On July 15, 2019, respondent’s deputy superintendent (“the deputy superintendent”) accepted service of the petition, attesting in an affidavit of service that he was respondent’s “liaison for homeless children and youth.”  According to petitioner, the deputy superintendent advised her on that same day that he had assumed the liaison’s responsibilities because the liaison was on maternity leave.  Petitioner claims that the deputy superintendent “made copies of [her] evidence and paperwork” on that date but that the copies he made were not legible.  Petitioner states that, because she had been unable to speak to the liaison directly and the deputy superintendent did not provide her with written confirmation that he received her petition and exhibits, she mailed the petition and exhibits to the district office in addition to serving the deputy superintendent in person.

In this case, although respondent maintains that petitioner served it with only the petition and not the exhibits, petitioner indicates that she provided or attempted to provide respondent with the exhibits on numerous occasions, including the day she served the petition.  Moreover, respondent appears to be familiar with the exhibits, was able to respond to their contents in its answer, and did not respond to petitioner’s detailed explanation of her efforts to serve the petition and its exhibits.[2]  Because respondent bears the burden of establishing any affirmative defenses, I find that respondent has failed to establish that petitioner’s service of the petition was improper (see e.g. Appeals of T.M., 58 Ed Dept Rep, Decision No. 17,496).  I therefore decline to dismiss the appeal under these circumstances (see Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812).  Additionally, I will consider the exhibits in reaching my determination (cf. Appeal of E.C., 58 Ed Dept Rep, Decision No. 17,638 [declining to consider exhibits where petitioner failed to contest respondent’s assertion that it was not served with copies thereof]).

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:

(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; or

(iv) 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;

(v)  an unaccompanied youth ...; 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 ....

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, I find that J.R. fits the definition of a homeless child under State and federal law.  Petitioner has established that she and her children lack a fixed, regular, and adequate nighttime residence insofar as they are sharing the housing of other persons due to a loss of housing, economic hardship, or a similar reason.  Petitioner indicates that, at her parents’ co-op, her parents sleep in the sole bedroom, J.R. sleeps on a couch in the living room, and she and her 19-year-old daughter share a twin-sized day bed that is also located in the living room.  To substantiate her claims, petitioner has submitted photographs of her parents’ residence, which depict the couch and the day bed in the living room; clothes hanging from bookshelves above a table; large piles of boxes, bags, and other personal belongings throughout the residence; and petitioner’s car filled with personal belongings.

The record also contains evidence that petitioner suffers from medical conditions that have inhibited her ability to work and that she moved into her parents’ residence because she was no longer able to afford her in-district residence after losing her job.  Under these circumstances, petitioner’s living situation appears to be inadequate (see Appeal of R.W., 49 Ed Dept Rep 73, Decision No. 15,962 [student homeless where petitioner and student shared a one-bedroom apartment with another person, student slept on a couch, and petitioner slept on an air mattress on the floor]; Appeal of G.R., 49 id. 50, Decision No. 15,955 [student homeless where petitioner, student, and student’s child shared a three-bedroom house with six other people and student slept on a couch in the living room with minimal privacy]).  The authority upon which respondent relies is distinguishable from the instant appeal (cf. Appeal of K.G.B., 58 Ed Dept Rep, Decision No. 17,666 [student not homeless where petitioner, student, and student’s two siblings shared a four-bedroom, 1,760-square-foot house with petitioner’s mother and student slept in his own bed in a finished attic]; Appeal of K.W., 48 id. 451, Decision No. 15,912 [student not homeless where petitioner, student, and student’s two siblings occupied their own two-bedroom apartment and student slept on a couch in the living room and had use of a walk-in closet]).  Although petitioner has been living at her parents’ residence for approximately three years, an inadequate living arrangement such as this does not become a fixed, regular, and adequate nighttime residence merely because of its duration (see Appeal of R.M., 54 Ed Dept Rep, Decision No. 16,643).

On this record, for the reasons set forth above, I find that petitioner has met her burden of proving that J.R. lacks a fixed, regular, and adequate nighttime residence.  In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit J.R. to attend school in the Hewlett-Woodmere Union Free School District without the payment of tuition and provide transportation services to J.R. for the duration of homelessness and in accordance with Education Law §3209, including but not limited to those provisions regarding a child’s terminal year in a school building, where applicable.

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