Appeal of R.H. and S.H., on behalf of their children T.H., R.H. and P.H., from action of the Board of Education of the Hampton Bays Union Free School District regarding residency and transportation.

Decision No. 17,869

(July 6, 2020)

Law Offices of Frederick K. Brewington, Esq., attorney for petitioners

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Hampton Bays Union Free School District (“respondent”) that T.H., R.H., and P.H. (collectively, “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 respondent’s schools.  The appeal must be dismissed.

According to petitioners, on or about October 1, 2016, they and the students were forced to leave their in-district residence when it “became unavailable as a rental property.”  Petitioners and the students moved into petitioner R.H.’s mother’s home, which is located outside of respondent’s district in Southampton, New York (the “out-of-district residence”) in the fall of 2016.  Respondent permitted the students to continue attending its district as homeless students for the remainder of the 2016-17 school year as well as the 2017-2018 and 2018-2019 school years.

According to an affidavit submitted by respondent’s homeless liaison, the homeless liaison met with petitioner S.H. on May 10, 2019 and advised her that respondent required documentation regarding the students’ living arrangements and petitioners’ efforts to find housing within the district.  Petitioner admits that she spoke with the homeless liaison but denies that the liaison asked for specific documentation or that she agreed to submit any such documents.

According to the record, the homeless liaison attempted to contact petitioner S.H. by telephone at least five times between June and September 2019.  The homeless liaison asserts that he was unable to reach petitioner S.H. and that S.H. did not return his calls.

On September 23, 2019, the homeless liaison called petitioner S.H. again, this time leaving a voicemail message indicating that the students were to be excluded from attending respondent’s schools effective the following day.

Thereafter, a meeting was scheduled for October 4, 2019 to afford petitioners an opportunity to provide evidence concerning the students’ homeless status.  Petitioners did not attend this meeting and allege, on appeal, that they did not receive the email until October 7, 2019 and, in any event, were unable to attend such meeting.  The record reflects that, sometime after October 4, 2019, petitioners provided respondent with:  (1) a notarized letter confirming that the students resided at the out-of-district address for the past 3 years; and (2) a letter from a real-estate broker indicating that petitioners have been looking for permanent housing within the district.

In a letter dated October 7, 2019, the homeless liaison advised petitioners of respondent’s determination that the students were no longer homeless as defined by McKinney-Vento and State law because the out-of-district residence was a fixed, regular and adequate nighttime residence.  This appeal ensued.

Petitioners assert that the out-of-district location is not a fixed, regular or adequate nighttime residence.  Petitioners also assert that they and their family are sharing the housing of others and that the students are “doubled up in a room.”  Petitioners seek a determination that the students are homeless within the meaning of McKinney-Vento and Education Law §3209.

Respondent asserts that the appeal must be dismissed, inter alia, as untimely.  On the merits, respondent argues that petitioners have failed to meet their burden of proving that the students are not homeless.

First, I must address the procedural issues.  In a letter dated January 24, 2020, petitioners submitted additional documentary evidence.  Respondent’s counsel objects to petitioners’ submissions.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).

I decline to accept petitioners’ additional documents.  These documents, which include a housing questionnaire and a notarized version of a letter petitioners provided to respondent in fall 2019, improperly seek to bolster claims that should have been made in the petition.  Additionally, many of the documents were available at the time the petition was served and petitioners have provided no explanation as to why they were not included with the petition.  Petitioners’ only explanation in this respect is that these documents were “omitted in error.”  I do not find this explanation compelling.  As indicated above, petitioners offer no explanation for their failure to submit those documents that predate the petition and petitioners are represented by counsel.  Additionally, those documents that post-date the petition could not have been “omitted in error” since they were generated after service of the petition.  Accordingly, I decline to accept petitioners’ additional exhibits into the record pursuant to 8 NYCRR §276.5.

Additionally, in a letter dated January 31, 2020, petitioners alleged that they intended to submit the documents attached to the January 24, 2020 letter with their reply.  Even assuming the truth of this allegation, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 students were no longer homeless by letter dated October 7, 2019.  Therefore, affording petitioners 30 days and five days for mailing, excluding Sundays and holidays, petitioners were required to commence an appeal on or before November 14, 2019.[1]  On November 18, 2019, my Office of Counsel received a petition from petitioners that did not contain an affidavit of personal service.  By letter dated November 19, 2019, my Office of Counsel returned this submission to petitioners.  Thereafter, petitioners submitted the instant petition, which contains two affidavits of personal service.  These affidavits reflect personal service on respondent on November 22 and 25, 2019.  Both dates are over a week after the 30-day time limitation, calculated in the manner described above.  Petitioners do not set forth good cause for the delay in serving the petition (8 NYCRR §275.16).  Therefore, the appeal must be dismissed as untimely.

With their reply, petitioners assert that “it was [their] belief that [they were] able to reserve” a copy of the petition upon receipt of the November 19, 2019 letter.  This letter, however, did not excuse petitioners’ delay or provide them with an opportunity to “reserve” the petition.  Petitioners further argue that the term “day,” as used in the practice regulations governing appeals and other proceedings before the Commissioner, means business days, citing 8 NYCRR §276.11(a)(2).  That regulation, however, only applies to charter school location/co-location appeals pursuant to Education Law §2853(3) and is not applicable here.

Even if the appeal were not subject to dismissal 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:

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).

The record reflects that petitioners and the students reside at the out-of-district residence, which is owned by petitioner R.H.’s mother.  While petitioners checked a box on the form petition indicating that they and the students are “sharing the housing of other persons,” the mere assertion that a student is sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of C.M., 58 Ed Dept Rep, Decision No. 17,664; Appeal of A.M., 57 id., Decision No. 17,146).  Without any specific information about the adequacy of petitioners’ and the students’ living arrangements, such as affidavits or photographs, I cannot find that the out-of-district address is inadequate (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165).

In support of their appeal, petitioners submit a copy of an accommodation plan issued pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”) for R.H.  Respondent, however, does not dispute R.H.’s eligibility for accommodations under Section 504, and the accommodation plan does not include any information concerning the fixed, regular or adequate nature of the out-of-district residence.  Therefore, I find that petitioners have not met their burden of proving that the out-of-district residence is inadequate (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146; Appeal of D.W., 56 id., Decision No. 16,924).[3]

Moreover, petitioners have not established that the out-of-district residence is temporary or transitional in nature.  No evidence has been submitted by petitioners that the students need to vacate the out-of-district residence immediately, or that there is a fixed time limit as to how long they 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).

Accordingly, based upon the record before me, I find that petitioners have not met their burden of proving that the students lack a fixed, regular and adequate nighttime residence.  Therefore, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioners retain the right to reapply for admission to respondent’s schools on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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