Appeal of D.E., on behalf of her children K.B. and R.C. from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency.

Decision No. 17,894

(August 5, 2020)

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

Tahoe., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that her children, K.B. and R.C. (“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.

Prior to the events described in this appeal, petitioner and the students resided at an apartment in respondent’s district (the “in-district residence”), and the students attended respondent’s schools as district residents.  The record reflects that, in addition to the students, petitioner has two older children who are not subject to this appeal insofar as the 2019-2020 school year was their terminal year attending respondent’s high school (see Education Law §3209[2][c]).

According to the record, petitioner and her family were evicted from the in-district residence in May 2017.  On or about May 25, 2017, petitioner informed respondent that she and the students had moved in with petitioner’s mother at an apartment in Freeport, New York (the “out-of-district residence”).  While the record is not entirely clear, it appears that respondent allowed the students to remain enrolled in its schools as homeless students during the remainder of the 2016-2017 school year as well as the 2017-2018 and 2018-2019 school years. 

On June 1, 2019, respondent’s business administrator conducted a home visit at the out-of-district residence.  In an affidavit submitted with respondent’s answer, the business administrator describes the out-of-district residence as a one-bedroom apartment with a kitchen, a bathroom, and “a living room that has been converted into a bedroom,” in which he observed a “large-sized bed.”  According to the business administrator, petitioner advised him on June 1, 2019 that her two older children recently “moved into” the out-of-district residence after previously residing with her grandmother at another location outside of respondent’s district (the “grandmother’s apartment”).  The business administrator states that petitioner “explained ... that they had all decided they wanted to live together as one family.”  He further states that petitioner “informed [him] during the home visit that day that she had no concerns that her mother would compel her to move out.” 

By letter dated June 10, 2019, the business administrator informed petitioner of his determination that the students were not entitled to attend the district’s schools because they were neither residents of the district nor homeless.  Specifically, the business administrator concluded that the out-of-district residence was “a fixed, regular and adequate nighttime residence.”  The business administrator informed petitioner that, unless she met with him or submitted additional evidence for the district’s consideration, the students would be excluded from the district’s schools after June 29, 2019. 

In a letter dated June 25, 2019, the business administrator informed petitioner that, “[i]nasmuch as [she] ha[d] not provided ... further written documentation,” he was “confirming [his] determination” that the students were not homeless.  The business administrator indicated that the students would be excluded from the district’s schools after July 26, 2019.  This appeal ensued.

Petitioner claims that her children are homeless within the meaning of McKinney-Vento because they are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  Petitioner seeks a determination that the students are homeless and, thus, entitled to attend respondent’s schools without payment of tuition and to receive transportation.

Respondent contends it did not act arbitrarily or capriciously in determining that the students are not homeless.  Respondent argues that the appeal must be dismissed because petitioner has failed to establish that the students lack a fixed, regular, and adequate nighttime residence.

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 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).

Based on the record before me, petitioner has not established that the students meet the definition of homeless children under either State or federal law.  Petitioner contends that as a result of their eviction from the in-district residence in May 2017 she and the students began to “temporarily reside” at both the out-of-district address with her mother and at her grandmother’s apartment.  Petitioner asserts that:

[i]n neither location do the [students] have a bedroom or an individual bed to sleep in.  At the [grandmother’s apartment], the [students] sleep in the living room on a blow[-]up mattress that is shared between the[m].  At the [out-of-district residence], the [students] sleep either on a reclining chair or a small loveseat.  Each location only has one bathroom.  The [students] alternate between the two residences as the renters allow.  This is not [an] adequate housing arrangement for children who are 12 and 8 years old.

Along with her petition, petitioner submits unsworn statements from her mother and grandmother.  Her mother indicates that petitioner came to her “2 years ago after being evicted needing a place to stay” and that petitioner, the students and petitioner’s two older children reside with her at the out-of-district address “at least 3 [to] 4 times a week.”  Petitioner’s mother additionally indicates that she has “no space” for petitioner and her children, who sleep on a “sofa, love seat and pull[-]out co[u]ches.”   Petitioner’s grandmother states that petitioner “ask[ed] [her] to help her and [her] children when she became homeless due to a[n] eviction 2 years ago” and that petitioner and all four of her children live with her at her apartment “at least 3 to 4 times a week.”  Petitioner’s grandmother further states that she allows them “to sleep at [her] address in the living room on [her] living room furniture” and that the she does “not have space” for them.

Initially, I note that petitioner raises her claim that she and the students are alternating between the out-of-district residence and her grandmother’s apartment for the first time on appeal.  In his affidavit, the business administrator asserts that “[a]lthough [the p]etition alleges that the [s]tudents and [p]etitioner reside at both addresses, [p]etitioner ... represented to the [d]istrict that ... she was residing at the [out-of-district residence] only.”  The business administrator further asserts that petitioner “never mentioned that she had resided, or [was] residing, at [her grandmother’s apartment] with the [s]tudents, or that she and the [s]tudents were allegedly splitting time between [the out-of-district residence] and [the grandmother’s apartment].”  It is well-settled that arguments may not be raised for the first time in an appeal to the Commissioner pursuant to Education Law §310 (see e.g. Appeal of A.C., 59 Ed Dept Rep, Decision No. 17,799; Appeal of N.H., 59 id., Decision No. 17,732).  Accordingly, to the extent petitioner contends that the students are homeless because they are alternating between the out-of-district residence and the grandmother’s apartment, or that they are homeless because the grandmother’s apartment is inadequate, such claims are not properly before me on her appeal from respondent’s determination.[2]

Moreover, petitioner has failed to establish, on this record, that the out-of-district residence is inadequate.  In his affidavit, the business administrator avers that during his home visit at the out-of-district residence, “[a]ll utilities, including electricity, and water, appeared in working order.”  He further indicates that petitioner informed him that her two older children shared the bedroom while she, her mother, and the students slept in the living room.[3]  Petitioner has not submitted a reply or other evidence to refute these assertions, nor has she provided any evidence (e.g. photographs or affidavits) to support her claim that her housing is inadequate  (Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038). 

Petitioner has also failed to establish that the out-of-district residence is temporary or transitional.  The record indicates that petitioner and the students have been residing at the out-of-district residence since May 2017.  In the petition, petitioner describes their living situation as temporary, and both her mother and grandmother indicate in their written statements that they do not have adequate space and that petitioner and the students are “not able to live with [them] permentaly (sic).”  However, petitioner does not assert that there is a specific time by which she and the students need to vacate the out-of-district residence.  Without so asserting, these conclusory statements are insufficient to meet petitioner’s burden of proof on this issue (see Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,721; Appeal of P.B., 55 id., Decision No. 16,804; Appeal of a Student with a Disability, 53 id., Decision No. 16,621).[4]

Therefore, based upon the record before me, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate nighttime residence or are living in a shelter or other temporary living accommodations as 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