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Decision No. 16,404

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Hastings-On-Hudson Union Free School District regarding residency and transportation.

Decision No. 16,404

(August 30, 2012)

Littman Krooks LLP, attorneys for petitioner, Sheryl R. Fishman, Esq., of counsel

Keane & Beane, PC, attorneys for respondent, Stephanie L. Burns, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Hastings-on-Hudson Union Free School District (“respondent”) that her daughter is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed. 

The record indicates that until approximately July 2011 petitioner resided within respondent’s district, where her daughter attended school. Petitioner’s daughter has been identified by respondent’s committee on special education (“CSE”) as a student with a disability.  During the 2011-2012 school year, respondent placed her in a special education program located at Eastchester High School (“EHS”) in the Eastchester Union Free School District.  Transportation services were not included as part of the student’s 2011-2012 individualized education program (“IEP”). Instead, petitioner’s daughter apparently received transportation pursuant to the district’s general transportation policy.

According to the petition, beginning in September 2005, petitioner’s husband experienced several periods of unemployment.  At some point, petitioner and her husband were unable to afford their mortgage payment and, in April 2011, foreclosure proceedings were commenced on their residence in respondent’s district. 

By email dated July 13, 2011, petitioner advised respondent’s homeless liaison (“liaison”) that her home was being foreclosed upon and that it would be sold on July 15, 2011.  Petitioner further advised that, as of that date, her family would reside with her parents in Yonkers, New York, outside the district.  Petitioner maintained that this would be a temporary situation, until she and her husband were able to find adequate and affordable housing for their family.  Petitioner stated that she wanted to avoid any interruption in her daughter’s program or services while her family was homeless, noting that her daughter was attending a special education summer program (“summer program”), apparently at EHS with transportation.  By email dated July 15, 2011, the liaison asked for petitioner’s new address in order to arrange for transportation during the student’s summer program. 

By letter dated August 4, 2011, respondent’s director of special education services (“director”) requested additional information from petitioner regarding her family’s living situation to determine whether the student was still eligible to receive an education at district expense.  Petitioner responded by letter dated August 12, 2011, stating that, interalia, she and her family were temporarily residing at her mother’s Yonkers residence, that she did not know how long they would be residing there and that their home had been sold under duress, as a result of her family’s “financial difficulties and a bank foreclosure.”  Petitioner also asserted that, as soon as her family’s financial circumstances permitted, they intended to return to the district.

On October 4, 2011, the liaison met with petitioner to discuss her family’s living situation.  According to the liaison, petitioner advised her that, although the family had received a notice of foreclosure, their home had been sold, not foreclosed upon.  Petitioner also maintained that, despite the fact that her husband had recently become employed, her family was still residing at her mother’s Yonkers residence.

On January 9, 2012, the liaison met with petitioner again and was advised that, due to their financial situation, petitioner’s family still resided at the Yonkers residence. Petitioner also described her family’s accommodations within this residence and asserted that her daughter had her own bedroom.  Petitioner further expressed her desire to return to the district but did not indicate that she or her husband were seeking alternative housing or planning to relocate any time in the near future.  Petitioner did not indicate that there was a time limit as to how long her family could continue to reside with her mother. 

By letter dated January 17, 2012, respondent’s treasurer advised petitioner that, because her family had been living at her mother’s residence, which the district had determined was a fixed, regular and adequate nighttime residence, in excess of six months, that residence had become permanent and petitioner’s family was no longer considered homeless.  Nevertheless, although respondent would not provide transportation, it permitted petitioner’s daughter to attend its schools for the remainder of the 2011-2012 school year.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 15, 2012. 

Petitioner contends that her daughter is homeless within the meaning of McKinney-Vento because she is sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.  Respondent argues that the student is not homeless within the meaning of McKinney-Vento.

I must first address several procedural issues.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

Respondent also objects to portions of petitioner’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Petitioner’s memorandum of law includes a number of additional factual allegations and belated assertions that are not part of the pleadings and may not be set forth for the first time in a memorandum of law.  Consequently, I have not considered those portions of petitioner’s memorandum of law.

In the petition, petitioner asserts that her family’s living arrangement is temporary, transitional and necessitated by severe economic hardship.  However, the petition is based solely upon her daughter’s homelessness and does not assert that she continues to be a legal resident of respondent’s district (seegenerallyAppeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  Therefore, that claim is not properly before me in this appeal, which seeks review only of respondent’s homelessness determination.  Issues not raised before respondent and presented for its consideration and decision may not be raised for the first time in an appeal to the Commissioner under Education Law §310 (Appeal of J.H., 51 Ed Dept Rep, Decision No. 16,376; Appeal of A.R. and S.R., 40 id. 262, Decision No. 14,477).

Education Law §3209(1)(a) defines a 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;
    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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

On the record before me, I find that the student does not meet the definition of a homeless child under either State or federal law.  Since July 2011, petitioner and her family have resided in her mother’s home outside the district.  Furthermore, although the petitioner describes her mother’s residence as small and the parties dispute whether it has three or four bedrooms, it is undisputed that the student has her own bedroom.  Petitioner does not assert that the residence is inadequate.  Thus, the record indicates that petitioner and her family have a fixed, regular night-time residence, and petitioner has not established that such residence is inadequate.  While it is unfortunate that petitioner and her family sold their district residence to avoid foreclosure, there is no evidence in the record that their living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209.  Thus, petitioner has failed to demonstrate that her daughter lacks a fixed, regular and adequate night-time residence and is homeless (seeAppeals of L.B., 50 Ed Dept Rep, Decision No. 16,129; Appeals of P.R., 48 id. 24, Decision No. 15,781; Appeal of S.D., 47 id. 44, Decision No. 15,620).

Additionally, petitioner has not established that her current residence with her mother in Yonkers is of a temporary or transitional nature.  The petition only contains conclusory statements by petitioner that her current residence is temporary.  The fact that petitioner asserts that her family intends to move back to the district at some point does not establish that her current residence is temporary or transitional within the meaning of Education Law §3209.  To the contrary, the record shows that petitioner and her family have been living in her mother’s residence for over a year, and there is no evidence of attempt to relocate to respondent’s school district.  In addition, there is no evidence that petitioner needs to vacate her current residence or that there is a time limit as to how long her family can reside there (Appeals of L.B., 50 Ed Dept Rep, Decision No. 16,129; Appeal of J.U., 50 id., Decision No. 16,095; Appeal of M.W., 46 id. 151, Decision No. 15,471).  Accordingly, based on the record before me, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious. 

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner has the right to reapply for admission to respondent’s schools on her daughter’s behalf at any time, particularly if her living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.  This includes the right to seek a determination pursuant to 8 NYCRR §100.2(y) that her daughter’s permanent residence is in respondent’s school district.

In light of this disposition, I need not address the parties’ remaining contentions.