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Decision No. 16,066

Appeal of J.S., on behalf of her children K.C. and R.O., from action of the Board of Education of the Port Byron Central School District regarding residency and transportation.

Decision No. 16,066

(May 27, 2010)

Matthew R. Fletcher, Esq., attorney for respondent

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Port Byron Central School District (“respondent”) that her two children, K.C. and R.O., are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record indicates that, during the 2008-2009 school year, K.C. and R.O. attended school in respondent’s district.  By letter dated November 6, 2008, respondent’s superintendent informed petitioner that her children’s residency was in question.  The superintendent provided petitioner with the opportunity to meet with him and submit information establishing residency within the district.

By letter dated January 26, 2009, the superintendent notified petitioner that K.C. and R.O. were neither district residents nor homeless students and would be excluded from respondent’s schools.  Petitioner appealed this determination by letter dated February 3, 2009 in which she admitted that she had been living with her father in the Seneca Falls Central School District (“Seneca Falls”) since November 2008.  Petitioner explained that she was out of work pending surgery, and was receiving disability income, but intended to return to Port Byron before the beginning of the next school year.  In a February 9, 2009 letter, the superintendent informed petitioner that K.C. and R.O. would be permitted to continue attending respondent’s schools and receiving transportation thereto.

By letter dated July 1, 2009, respondent’s homeless liaison informed petitioner that K.C. and R.O. were not homeless students or district residents and advised her to enroll them in the Seneca Falls Central School District.

On or about August 4, 2009, my Office of Counsel received a petition in this matter.  By letter dated August 6, 2009, the Office rejected the petition for failure to effect personal service on respondent.  On August 25, 2009, petitioner served the petition upon respondent’s homeless liaison.  Petitioner’s request for interim relief was denied on September 2, 2009.

Petitioner contends that her children are homeless within the meaning of McKinney-Vento and, therefore, are entitled to attend and receive transportation to respondent’s schools.

Respondent asserts that the appeal must be dismissed as untimely.  Respondent also contends that petitioner has not carried her burden of establishing that her children are homeless within the meaning of McKinney-Vento.

On or about October 2, 2009, petitioner submitted additional papers pursuant to §276.5 of the Commissioner’s regulations.  Respondent objects to this submission.  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 (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  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 (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  Petitioner’s additional submission adds new exhibits, such as petitioner’s medical records and her children’s educational records, which could have been included in her petition.  Accordingly, I have not considered petitioner’s submission.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  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 Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535). 

Respondent argues that the appeal is untimely because it was commenced more than 30 days after its July 1, 2009 determination.  While the record indicates that respondent notified petitioner of its determination by letter dated July 1, 2009, the record is unclear as to when petitioner actually received the notice.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be July 8, 2009.  Petitioner thus had to commence her appeal on or before August 7, 2009.  However, as noted above, petitioner did not properly commence her appeal by personal service upon respondent until August 25, 2009.  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  Education Law §3209(1)(a) defines a homeless child as:

  1. a child or youth who lacks a fixed, regular, and adequate night-time 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;
    4. awaiting foster care placement; or
    5. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; 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 ....

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Based on the record before me, I find that petitioner has failed to meet her burden of proving that her children fit the definition of homeless children under either State or federal law.

The record indicates that petitioner and her children have been living with petitioner’s father outside respondent’s district since on or about November 2008.  Although petitioner contends that she “will be moving back to Port Byron around tax time if all goes well,” the record contains no evidence that petitioner’s current living arrangement is temporary or transitional or that such residence is inadequate.  In addition, petitioner claims that she is living outside respondent’s district because she lost her job due to a medical condition and related surgeries.  However, petitioner submitted no documentation or other supporting evidence with her petition.  Thus, she has failed to establish that her children lack a fixed, regular and adequate nighttime residence and are homeless within the meaning of federal or State law (seeAppeal of a Student with a Disability, 49 Ed Dept Rep 77, Decision No. 15,963; Appeals of P.R., 48 id. 24, Decision No. 15,781; Appeal of S.D., 47 id. 44, Decision no. 15,620).  Accordingly, I cannot find respondent’s determination to be arbitrary or capricious.