Appeal of a STUDENT WITH A DISABILITY, by his mother, from action of the Board of Education of the Eastport-South Manor Central School District regarding residency and transportation.

Decision No. 16,621

(June 20, 2014)

Guercio & Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

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

The record indicates that the student’s parents are divorced and that the student resided with his father within respondent’s district until approximately August 2010, when he moved in with his mother and sister outside respondent’s district. Petitioner alleges that the student can no longer live with his father due to abuse.

Petitioner claims that she currently resides in a “temporary cottage that has 1 bedroom for 3 people.” To support her claim, petitioner submits a notarized letter in which she states that the student has attended respondent’s schools since kindergarten. Petitioner explains that she previously resided in a two-bedroom apartment with her two daughters and her grandson. After the student came to stay with her, her lease expired and she “did not have an option to renew, due to unaffordable monthly rent. My family was facing homelessness.” Petitioner further states that her therapist helped her find a “small one bedroom house with no long-term lease, that I now rent on a month-to-month basis. My daughter and I share a small bedroom and my son sleeps on the sofa. This is temporary, until I can find a place with more space that is affordable to rent.” Petitioner also submits a letter from the owners of the cottage, who state that petitioner lives there with her daughter and the student on a month-to-month basis, and a notarized letter from her therapist, who states that petitioner’s living arrangement is temporary “until [petitioner] can secure a rental that would accommodate all three family members more adequately.”

In an affidavit, respondent’s assistant superintendent for personnel (“assistant superintendent”) states that, by letter dated January 14, 2011, the district informed petitioner that it had obtained information that the student was living with petitioner, and requested that she provide information in support of her residency within the district. The assistant superintendent avers that petitioner failed to respond to the letter and to the district’s follow-up voicemail messages. The district notified petitioner that a residency hearing was scheduled for February 11, 2011, at which time petitioner would be able to present proof of residency. According to the assistant superintendent, petitioner failed to produce sufficient proof at the hearing or thereafter and, by letter dated March 15, 2011, respondent notified petitioner that she was not a district resident and that the student would be excluded from respondent’s schools.

The assistant superintendent also avers that, thereafter, the student was permitted to continue attending school in the district based on petitioner’s claim that she was homeless. The district initiated an investigation into petitioner’s claim of homelessness and, by letter dated May 26, 2011, the district informed petitioner and the student’s father that a hearing was scheduled for June 6, 2011. The assistant superintendent avers that petitioner neither responded to the letter nor to any of the district’s follow-up voicemail messages. Petitioner failed to attend the hearing, but the student’s father attended. The assistant superintendent avers that the father testified, among other things, as follows: that he has sole legal and residential custody of the student, who decided to leave his father’s home in August 2010 and can return at any time; that he provides for the student’s health insurance; that the student’s custody is the subject of litigation; that the allegations of abuse are unfounded and relate to a single disciplinary incident; and that the student resides with petitioner outside the district in a “1,000+ square foot two-bedroom home in which he had his own bedroom, a shared living space (kitchen, living room, etc.) and two bathrooms.”

By letter dated September 15, 2011, the assistant superintendent informed petitioner that, on June 6, 2011, a meeting was held pursuant to §100.2(y) of the Commissioner’s regulations to which petitioner was invited but did not attend. The letter explained that, “[b]ased upon a review of the documents gathered as a result of the District’s investigation and the testimony provided by [the student’s father], it has been determined that [the student] is not a legal resident of the District and therefore not legally entitled to attend the District’s schools absent the payment of tuition.”

According to the assistant superintendent, petitioner telephoned the district on September 23, 2011 and stated that she was homeless and residing outside the district. By letter dated September 26, 2011, the assistant superintendent informed petitioner of the district’s determination that the student was not a homeless student entitled to attend its schools. The letter stated that the student would be permitted to attend respondent’s schools, and if petitioner appealed the determination within 30 days of receipt thereof, the district would delay implementation of its final determination for 30 days. This appeal ensued. Petitioner’s request for interim relief was denied.

Petitioner argues that she and the student are homeless within the meaning of McKinney-Vento because they are living in a “temporary (month to month) living situation in a 1 bedroom house/cottage to accommodate 3 people.”

Respondent argues that the appeal must be dismissed as untimely, for failure to exhaust administrative remedies, and for failure to state a claim upon which relief may be granted. Respondent maintains that its decision was rational and not arbitrary and capricious because petitioner is neither homeless nor a resident of the district and the student is therefore not entitled to attend its schools on a tuition-free basis. Respondent also asserts that, despite repeated requests from the district, petitioner failed to provide any information or documentation to support her claim of homelessness until she filed the instant appeal.

Initially, I must address the procedural issues. In its answer, respondent raises the affirmative defense of untimeliness, arguing that the appeal was commenced more than 30 days after “the acts complained of, namely the District’s determination ... set forth in a letter dated September 15, 2011.” I disagree. The assistant superintendent’s September 15, 2011 letter informed petitioner that, following a residency meeting held pursuant to 8 NYCRR §100.2(y), the district had determined that the student was not a district resident. However, his September 26, 2011 letter informed petitioner of the district’s determination that the student was not entitled to attend its schools as a homeless student. Both letters informed petitioner of her right to commence an appeal to the Commissioner within 30 days.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). 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 K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

On October 26, 2011, petitioner served a “Form Notice of Petition for an Appeal Involving a Homeless Child or Youth” on the district’s homeless liaison. In the petition, petitioner stated that she requested enrollment on September 1, 2011 and that such request was denied by respondent on September 26, 2011. Petitioner attached to her petition the September 26, 2011 letter setting forth the district’s determination that her son was not homeless. Affording the usual five days for mailing, excluding Sundays and holidays, petitioner was required to commence her appeal of respondent’s homeless determination within 30 days of October 1, 2011, which she did. Accordingly, I will not dismiss the appeal as untimely.

Respondent also contends that the appeal must be dismissed for failure to exhaust administrative remedies. Respondent argues that because, despite repeated requests from the district, petitioner failed to submit any evidence to substantiate her claim of homelessness until she commenced this appeal, she thereby deprived respondent of the opportunity to consider such evidence as part of its decision-making process. I recognize that the evidence submitted by petitioner herein was not previously considered by respondent and that respondent did make a determination that the student is not homeless based upon the information available to it at the time. However, because the evidence submitted by petitioner is before me for purposes of this appeal and respondent has had ample opportunity to address it in its answer, I have considered the documents and will not dismiss the appeal for failure to exhaust administrative remedies.

Nevertheless, the appeal must 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 nighttime 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 nighttime 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 ...

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).

Based on the record before me, the student does not fit the definition of a homeless child under State or federal law. Petitioner alleges that she and her two children are living in a one-bedroom “house/cottage” and that she and her daughter share the bedroom while the student sleeps on the couch. To support her claim, petitioner has submitted four photographs: two of the home’s exterior, one of what appears to be a sofa with a blanket and pillow, and one of a bed. Other than her assertions and these limited photographs, petitioner has produced no evidence that she and the student lack a fixed, regular and adequate nighttime residence or are living the kind of shelter or other accommodation described in Education Law §3209(1)(a). Indeed, the assistant superintendent avers that at the June 2011 residency hearing, the student’s father testified that the student has his own bedroom in petitioner’s two-bedroom, two-bathroom residence. Petitioner has submitted no reply or other evidence to explain or otherwise refute the assistant superintendent’s assertion. Accordingly, on this record, petitioner has failed to carry her burden of demonstrating that she and the student lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).

Additionally, petitioner has not established that her living arrangement is temporary or transitional. The petition contains only conclusory statements by petitioner that the arrangement is temporary because she has no lease for the house, which she rents on a month-to-month basis. The record also contains a notarized letter from petitioner’s therapist stating that petitioner’s living arrangement is temporary and that she is “diligently looking for a bigger apartment for her family.” However, the fact that petitioner is renting a residence and is seeking a bigger apartment does not make the residence temporary or transitional (see Appeal of F.B., 50 Ed Dept Rep, Decision No. 16,197; Appeal of C.K., 50 id. Decision No. 16,138).

It is unfortunate that the student felt the need to leave his father’s residence and that petitioner may have experienced financial difficulties which led her to leave her previous apartment. However, based on the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a) and §100.2(x) of the Commissioner’s regulations. Further, I cannot find respondent’s determination that petitioner and the student are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that the student’s parents have the right to reapply for admission 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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