Appeal of D.S., on behalf of his son D.S. II, from action of the Board of Education of the East Islip Union Free School District regarding residency and transportation.

Decision No. 17,864

(July 1, 2020)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the East Islip Union Free School District (“respondent”) that his son (the “student”) is not eligible to attend the district’s schools 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 record in this matter is sparse and not entirely clear regarding the student’s status as a district resident or homeless student.  As best as can be ascertained, prior to the events described in this appeal, the student was enrolled in respondent’s schools as a district resident.  Respondent attempted to exclude the student as a non-resident in March 2017, but thereafter enrolled the student as a homeless student on or about April 5, 2017 due to loss of housing.  The student attended school in respondent’s district for the remainder of the 2016-2017 school year as well as the 2017-2018 school year.[1]

On April 19, 2018, respondent’s homeless liaison spoke with the student’s mother via telephone.  The student’s mother indicated that the student’s circumstances had not changed, and that he continued to reside at the out-of-district residence with her.  The student’s mother also asserted that petitioner “sometimes stayed” at the out-of-district residence.  The student continued to attend respondent’s schools for the 2018-2019 school year.

On September 24, 2018, the homeless liaison called the student’s mother and left her a voice message.  The student’s mother did not return this phone call.

On April 9, 2019,[2] the homeless liaison and another district employee visited the out-of-district residence.  The district employees met with petitioner’s mother, the student’s grandmother, who reported “that the student still resided with her and that he had his own bedroom.”  The student’s grandmother further stated that she “had no intention of changing the student’s housing situation.”

In a letter to the student’s mother dated May 8, 2019, respondent’s assistant superintendent for instruction and personnel determined that the student was no longer homeless.  The assistant superintendent reasoned that the student “ha[d] his own room in [the] home” and had been residing at the out-of-district residence since April 5, 2017.  This appeal ensued.

Petitioner contends that the student is homeless and that his son lacks a fixed, regular and adequate night-time residence because he is sharing the housing of other persons due to loss of housing and economic hardship.  Petitioner requests a determination that the student is homeless and entitled to attend respondent’s schools and receive transportation without payment of tuition.

Respondent argues that the petition must be dismissed as untimely.  On the merits, respondent contends that petitioner has failed to meet his burden of proving that the student’s residence is not fixed, regular or adequate.  

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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, respondent determined that the student was not homeless in a letter dated May 8, 2019.  Petitioner has submitted what appears to be the envelope containing the letter, which is postmarked May 8, 2019.  Petitioner did not commence the instant appeal until September 6, 2019, nearly four months after respondent’s determination.  There is no evidence that petitioner contacted the homeless liaison or attempted to appeal this determination prior to September 6, 2019.  Implicitly recognizing this delay, petitioner submits a handwritten note from the student’s mother dated September 6, 2019 that states, in part: “[t]his letter is to confirm that I have not been to [the out-of-district address] since May 5, 2019 for personal reasons.”  Petitioner also submits a letter from the student’s grandmother in which the grandmother asserts that she “did receive certified mail for [the student’s] mother” that she “signed for.”  She further asserts that the student’s mother “doesn’t reside at the [out-of-district] address” and that she gave the district’s exclusion letter to the student’s mother “last week,” which would have been sometime in early September 2019.

I cannot find that petitioner has set forth good cause for the delay.  There is no information in the record suggesting that the district had reason to suspect that the student’s mother did not reside at the out-of-district residence.  Therefore, it was reasonable for the district to address the May 8, 2019 exclusion letter to the student’s mother, the legal guardian who, it appears, had the most contact with the school district.  Moreover, the student’s grandmother suggests in her letter that she “receive[d] certified mail” – presumably the May 8, 2019 exclusion letter – but that she only delivered it to petitioner in the beginning of September.  Even assuming that the student’s mother did not receive the letter from the grandmother until early September, I cannot fault respondent for such delay.  Respondent reasonably sent a letter to the student’s mother at her address on file with the district, the same address where the student was alleged to reside.  Therefore, petitioner has failed to establish good cause for his delay in commencing this appeal and it must be dismissed.

Even if the appeal was not dismissed as untimely, 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:
2. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
3. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
4. abandoned in hospitals; or
5. 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;
6. 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 ....[3]

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).

Petitioner has failed to meet his burden of proving that the student is homeless under State or federal law.  Initially, I am compelled to note that petitioner’s allegations concerning the student’s living situation are inconsistent.  In response to question 7 of the form notice of petition for an appeal involving a homeless child and youth, petitioner indicated that the student is “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  In response to the portion of question 7 that asks the petitioner to “[p]lease list name, address, and relationship of all persons with whom the child/youth is sharing housing,” petitioner identified the following individuals: (1) his mother (i.e., the student’s grandmother); (2) a woman identified as a “tenant”; (3) the tenant’s “3 year old child”; and (4) an individual referred to as “tent” (presumably, a second tenant).  In response to question 8, which asks the petitioner to “[d]escribe child’s/youth’s current living arrangements,” petitioner stated that the student “shares a room with his grandmother or the tenants [sic] child.”[4]

However, in response to question 10, which asks the petitioner to “[d]escribe the circumstances causing child/youth to become homeless,” petitioner states, in the present tense, that “[w]e are both sleeping on couches in different friends or families[’] houses.” 

Regardless of which factual scenario petitioner presents, however, he has failed to meet his burden of proving that the student lacks a fixed, regular or adequate nighttime residence.  If the student resides at the out-of-district address, as suggested by the vast majority of evidence in the record, petitioner has provided no details or evidence about the adequacy of the living conditions at the out-of-district residence (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  While petitioner asserts that the student “shares a room with his grandmother or the tenants [sic] child,” he has not provided evidence that such sharing is compelled by the characteristics of the house or its number of inhabitants (Appeal of D.T., 58 Ed Dept Rep, Decision No. 17,558; Appeal of C.M., 57 id., Decision No. 17,131).  Without any specific information about the adequacy of petitioner and the students’ living arrangements, I cannot find that the out-of-district address is inadequate (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165).

Additionally, there is no indication that the out-of-district residence is temporary or transitional.  This residence is owned by the student’s grandmother and the record contains no evidence that the student needs to vacate the out-of-district residence or that there is a fixed time limit as to how long he may remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404).

Alternatively, if petitioner alleges that he and the student “are both sleeping on couches in different friends or families[’] houses,” he has produced no evidence to support such an assertion.  I further note, as indicated above, that this claim is not supported by the other evidence in the record, including an affidavit from the district’s homeless liaison. 

Based upon the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night-time residence or that he is 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 student is not homeless to be arbitrary or capricious.

Although the petition must be dismissed, I note that petitioner has the right to reapply to the district for his son’s admission, if circumstances change, and to present any new information for the district’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE