Appeal of C.P. and M.P., on behalf of their daughter A.M-P., from action of the Board of Education of the Tuckahoe Union Free School District regarding residency.

Decision No. 16,843

(November 2, 2015)

Girvin & Ferlazzo, P.C., attorneys for respondent, Erin R. Morris, Esq. of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Tuckahoe Union Free School District (“respondent”) that their daughter, A.M-P. (the “student”), is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431, et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools.  The appeal must be dismissed.

During the 2013-2014 school year, the student attended fourth grade in respondent’s district.  The record indicates that, in the spring of 2014, C.P. informed the district that the house in which petitioners lived within the district was foreclosed upon and therefore they were temporarily living outside the district with family.  The student was identified as homeless and continued to attend school in respondent’s district. 

Questions about the student’s residency arose the following school year when teachers reported that she was frequently late to school and a record review revealed that petitioners had not designated an emergency contact address.  According to respondent, in early October 2014, its assistant superintendent for curriculum, instruction and pupil services (“assistant superintendent”) contacted petitioners to determine where the family was residing.  Petitioner C.P. advised that they were living in an apartment complex in the Bronx (“Bronx address”) but was reluctant to provide an apartment number.  As a result, the assistant superintendent requested that the district’s homeless liaison (“liaison”) conduct a home visit and initiated a residency investigation, which included surveillance on the Bronx address.   

By letter dated November 4, 2014, the assistant superintendent notified petitioners that the student was not entitled to attend respondent’s schools as a homeless student.[1]  The letter further indicated that the determination was based on the conversation with the student’s father, unsuccessful home visits, and surveillance, which indicated that petitioners did not come and go from the Bronx address.  The assistant superintendent requested that petitioners complete an enclosed “residence questionnaire” and return it to the district by November 14, 2014. The assistant superintendent also indicated that petitioners were entitled to submit or present any other information concerning the student’s right to attend school in the district to him for consideration.  The record indicates that no additional information was submitted by petitioners except for a voicemail left by the student’s father stating that he did not have to verify his residence and that he was building a new home within the district. 

By letter dated December 2, 2014, the assistant superintendent notified petitioners that he had determined that the student was not entitled to attend respondent’s schools as a homeless student because petitioners did not establish that the Bronx address was not fixed, adequate and regular.[2]  Therefore, she would be excluded from the district as of January 1, 2015.  This appeal ensued.  Petitioners’ request for interim relief was denied on February 20, 2015.

Petitioners contend that the student is homeless because she lacks a fixed, regular and adequate night-time residence and is sharing the housing of other persons due to loss of housing.  They request that the student be permitted to attend school in respondent’s district without the payment of tuition.

Respondent argues that the appeal must be dismissed as untimely and moot.  It also contends that petitioners failed to provide any evidence that the student is homeless pursuant to State and federal law. 

First I will address the procedural matters.  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).

Respondent argues that the appeal is untimely because it was commenced more than 30 days after its December 2, 2014 determination.  While the record indicates that respondent notified petitioners of its determination by letter dated December 2, 2014, the record is unclear as to when petitioners actually received the notice.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be December 8, 2014.  Petitioners thus had to commence their appeal on or before January 7, 2015.  According to the “Affidavit of Acceptance of Personal Service” sworn to on January 22, 2015, the liaison was served on January 14, 2015.  I note that the December 2, 2014 determination letter enclosed the form notice and petition for commencing an appeal and specifically informed petitioners that they had 30 days to commence such appeal and that the liaison would be available to assist in completing the forms and explain the process.  However, according to respondent, petitioners did not contact the liaison for assistance or return her phone calls regarding the appeal.  Notably, petitioners provide no excuse for the delay and have not submitted a reply or other evidence to refute respondent’s contentions (cf. Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812).  Therefore, the appeal must be dismissed as untimely (see e.g. Appeal of L.B., 50 Ed Dept Rep, Decision No. 16,129). 

The appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The record indicates that, on or about January 22, 2015, petitioner C.P. informed the assistant superintendent that petitioners enrolled the student in P.S. 173, located in Manhattan, within the City School District of the City of New York.  The assistant superintendent avers that the records transfer request from P.S. 173 indicates that petitioners have enrolled the student there.  Because the student is enrolled in another district, the appeal is academic and must be dismissed as moot (see Appeal of V.G. and L.G., 51 Ed Dept Rep, Decision No. 16,328). 

In light of this disposition, I need not address the parties’ remaining contentions.  Although the appeal must be dismissed, I note that petitioners retain the right to reapply to the district on the student’s behalf should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE