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Decision No. 16,515


Appeal of a STUDENT WITH A DISABILITY and his siblings, by their mother, from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 16,515

(August 26, 2013)

Ingerman Smith, L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel

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

The record indicates that petitioner’s children were enrolled in respondent’s schools for the 2012-2013 school year using an in-district address in Baldwin, New York(“Baldwin address”). On October 10, 2012, respondent began an investigation of petitioner’s residency because one of her children had not been seen on the school bus since the beginning of the school year. On October 11, 2012, respondent’s investigator was present at the Baldwin address in the early morning hours and did not observe petitioner’s children exit the residence. On the same date, the district’s assistant director of pupil services spoke with petitioner who explained that the child had not been on the bus since September 2012 because there was amix-up with the bus route. Respondent’s transportation department confirmed this. Notwithstanding this information, respondent continued its investigation.

On October 12, 2012, respondent’s investigator was present at the Baldwin address during the early morning hours and did not observe petitioner’s children, although they were in school that day. That afternoon, the investigator was present at Baldwin Middle School while one of the children was trying out for cheerleading afterschool. At 5:30 p.m., petitioner picked the child up and

drove to an out-of-district address in Freeport, New York(“Freeport address”).

Accordingly, surveillance of the Freeport address was conducted from October 15 to 19, 2012. On each of the five days, petitioner and her children were observed exiting the residence during the early morning hours.

By letter dated October 19, 2012 sent to both the Baldwin and Freeport addresses, the district’s director of pupil services (“director”) informed petitioner and her husband that their residency was in question. The director asked petitioner and her husband to come in for a meeting on October 26, 2012 to discuss the family’s residency status. The letter indicated that petitioner’s children would be excluded from school as non-residents as of November 2, 2012 should petitioner choose not to meet.

The October 19, 2012 letter sent to the Freeport address was returned to the district on October 26, 2012.

On October 26, 2012, the director and the district registration clerk (“clerk”) spoke with petitioner who indicated that she did not receive the October 19, 2012exclusion letter. The clerk avers that, after being told that her children had been seen exiting the Freeport address on five consecutive days, petitioner admitted that her family was living at the Freeport address, that they were not evicted from the Baldwin address and that they were living with “grandma.” According to the clerk, petitioner did not indicate that the Freeport address was temporary and/or inadequate, nor did she provide any evidence of her intent to return to the district. Accordingly, petitioner’s children were excluded from the district’s schools effective November 2, 2012.

On or about November 13, 2012, respondent’s homeless liaison (“liaison”) received an email from petitioner wherein she asserted that her family was homeless. The liaison contacted petitioner who submitted documents concerning the presence of lead paint at the Baldwin address.

The liaison avers that, on or about November 19, 2012,he contacted the Department of Health and was told that the Baldwin address “was not good for long-term living,” but that petitioner intended to move and was not forced out of the apartment.

On November 20, 2012, petitioner’s children were re­enrolled in and re-entered Baldwin schools.

On November 21, 2012, the liaison conducted a home visit of the Freeport address. He found the apartment to 2 have two large bedrooms with enough space in each room for multiple beds. One bedroom contained a king-sized bed and a single bed, and the other bedroom contained girls’ furniture, clothing and toys. Although petitioner claimed to be staying there with her uncle, the liaison avers that there were no male clothes in the closet and no evidence that any adult male resided in the apartment.

By letter dated November 28, 2012, petitioner and her husband were informed that their children would be immediately re-enrolled in district schools for 30 days to allow them time to commence an appeal pursuant to Education Law §310. The letter explained that, absent such appeal, the students would be excluded from school on December 28,2012. This appeal ensued. By letter dated December 20,2012, the exclusion date for petitioner’s children was extended until January 11, 2013. This appeal ensued. Petitioner’s request for interim relief was denied on January 10, 2013.

Petitioner alleges that her family of six is temporarily occupying one bedroom in her uncle’s two-bedroom apartment and that this residence is inadequate. Petitioner states that her family’s bedroom in that apartment contains two beds as well as an inflatable bed for one of the children. Petitioner explains that, following a Department of Health inspection of her in-district apartment for lead paint in November 2011, her landlord was “very upset that [she] called the Health[Department] and he asked [her] to leave the premises otherwise he would” commence eviction proceedings. To support her claim, petitioner has submitted a January 2012warrant of eviction and a stipulation of settlement dated January 18, 2012 in which petitioner and her husband agreed that they would make certain past-due rent payments to the landlord by January 31, 2012 and that eviction proceedings would be stayed until March 21, 2012. Petitioner also contends that one of her children has an Individualized Education Program (“IEP”) and would not be successful in another district.

Respondent maintains that petitioner and her children do not meet the definition of “homeless” under McKinney-Vento and that they are not residents of respondent’s district.

I must first address a procedural issue. By letter dated January 15, 2013, respondent’s counsel requested permission to submit a late answer. Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR§276.3). Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589). In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902;Appeal of Smith, 48 id. 125, Decision No. 15,813).Respondent was required to serve its answer on January 9,2013, but did not do so until January 15, 2013, six days late.

Respondent contends that petitioner was not prejudiced by its delay because her children were attending school in Freeport and explains that the answer was late due to an illness in its counsel’s family. I do not, however, find this excuse compelling, nor do I find that respondent made a timely request for an extension of time to submit its answer. Accordingly, I have not accepted respondent’s answer, and petitioner’s factual statements are deemed to be true. However, respondent’s affidavits and exhibits in opposition to petitioner’s request for interim relief are properly part of the record before me and, to the extent that such documents are responsive to the allegations contained in the petition, I have considered them.

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:

i. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

ii. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

iii. abandoned in hospitals;

iv. awaiting foster care placement; or

v. 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 night-time location that is:

i. a supervised publicly or privately operated shelter designed to provide temporary living accommodations... or

ii. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings

Section 100.2(x) of the Commissioner’s regulations also conforms 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., 48id. 348, Decision No. 15,882).

Based on the record before me, I find that petitioner’s children do not fit the definition of homeless children under either State or federal law. While it is unfortunate that petitioner and her children may have had to leave their home in respondent’s district due to lead paint contamination and/or eviction, petitioner submits no evidence that she now lacks a fixed, regular and adequate night-time residence or that she is living in the kind of shelter or other accommodation described in Education Law §3209(1)(a). To the contrary, the liaison avers that he conducted a home visit of the Freeport address and found it to be a fixed, regular and adequate night-time residence. Moreover, contrary to petitioner’s assertion that she, her husband and children reside there with her uncle, the liaison also avers that he found no evidence during the home visit, such as men’s clothing, that would indicate that any adult male lived there.

Nor has petitioner carried her burden of establishing that her current residence in Freeport is temporary or transitional. Petitioner submits an unsworn letter from her uncle stating that his tenancy is month-to-month and that he is renting the apartment only until the end of February 2013, at which time he and petitioner’s family will have to move. Petitioner also submits a bill dated November 1, 2012 addressed to her uncle for rent due on the Freeport apartment. However, in contrast, respondent’s clerk avers that, on or about December 20, 2012, she spoke to the landlord for the Freeport address who confirmed that petitioner has an “active” one-year lease on the premises that began in March 2012. Moreover, as described above, the clerk avers that, in November 2012, petitioner stated that her family lived at the Freeport address with “grandma.” Petitioner submits no reply or other evidence to explain such inconsistencies in the record.

Based on this record, petitioner has failed to carry her burden of establishing that her children are homeless under State or federal law and I cannot find respondent’s determination that petitioner and her children reside in Freeport and are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission on her children’s behalf at any time and to submit any documentary evidence for respondent’s consideration.