Appeal of B.P., on behalf of her child H.P., from action of the Board of Education of the Frontier Central School District regarding residency and transportation.

Decision No. 18,027

(August 9, 2021)

Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freedman, Esq., and Lindsay A. Menasco, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Frontier Central School District (“respondent”) that her child, H.P. (“the student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC § 11431, et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Briefly, although petitioner indicated to respondent in 2019 that she resided at a location in the district (the “in-district address”), respondent conducted surveillance which consistently portrayed petitioner, the student, and/or her father at an address located outside of respondent’s district (the “out-of-district address”).  Respondent thereafter sought to exclude the student as a non-resident in February 2020.

In a letter dated February 12, 2020, respondent’s superintendent notified petitioner and the student’s father that the district would stay implementation of this decision to provide her with additional time to submit evidence to support a claim of homelessness.[1]  The letter indicated that any additional supporting documentation must be provided to respondent no later than February 28, 2020.

In a letter dated March 12, 2020, the superintendent notified petitioner of his determination the student was not a district resident and not homeless because she had a fixed, adequate, nighttime residence located at the out-of-district address.  This appeal ensued.

Petitioner contends that the student is homeless because the family is sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.  Petitioner further contends that although her children spend time with her and the father at the out-of-district address, the student and her sibling share a home with petitioner’s brother and his family at the in-district address.  For relief, petitioner seeks a determination that the student is homeless and entitled to attend respondent’s schools without payment of tuition and receive transportation.

Respondent asserts that petitioner has failed to meet her burden of proving that the student lacks a regular, fixed, and adequate nighttime residence.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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).

Petitioner’s affidavit of service reveals that petitioner signed, and the homeless liaison served, the petition on August 24, 2020.[2]  Respondent’s determination regarding petitioner’s claim of homelessness was made over five months earlier on March 12, 2020.  Petitioner has not set forth good cause, or any cause, for the delay in the petition (see 8 NYCRR 275.16).  Therefore, the appeal must be dismissed as untimely (see, e.g., Appeal of J.L., 59 Ed Dept Rep, Decision No 17,769; Appeal of J.D., 58 id., Decision No. 17,459; Appeals of L.B., 50 id., Decision No. 16,129).

While the appeal must be dismissed, I note that although petitioner seeks a determination that the student is homeless, her allegations appear to pertain to respondent’s residency determination.  In this respect, petitioner retains the right to reapply for admission to respondent’s school on the student’s 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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