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Decision No. 16,937

Appeal of K.B., on behalf of her children A.O. and N.M., from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency and transportation.

Ingerman Smith, L.L.P., attorneys for respondent, David F. Kwee, Esq., of counsel

Decision No. 16,937

(July 29, 2016)

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that her 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 receive transportation.  The appeal must be dismissed.

Petitioner’s children attended school in respondent’s district during the 2014-2015 school year.

In April 2015, respondent learned that petitioner had moved to a house outside the district in Queens that was owned by the children’s grandfather.  Petitioner claimed she was homeless, stating that she had lost her housing because her husband would be away for an indefinite period and she was concerned about her ability to pay rent for her in-district residence.  Petitioner’s children were permitted to continue attending district schools and receive transportation under McKinney-Vento.

On January 8, 2016, respondent’s business administrator visited petitioner’s Queens residence.  He observed that petitioner and her children were residing in an apartment in a three-family row house with separate entrances for each apartment.  According to the administrator, petitioner’s apartment is well-maintained, clean and neat.  Petitioner has her own bedroom, and her children share a bedroom.  Petitioner has use of a kitchen, bathroom, and living room.  The bathroom appeared to have recently been redone.  The living room had a flat screen television and the apartment was nicely furnished and decorated.  At the time of the business administrator’s visit, petitioner’s children were doing their homework at the kitchen table.

During the business administrator’s conversation with petitioner, petitioner represented that she had no concerns about losing her housing and denied that she was searching for new housing.  She indicated that she felt stable and, at least for the foreseeable future, believed that she had a permanent home at the children’s grandfather’s apartment house. 

By letter dated January 15, 2016, respondent’s business administrator notified petitioner that her out-of-district residence was considered fixed, regular and adequate and that her children would no longer be permitted to attend district schools free of tuition, effective February 15, 2016.  Petitioner was notified that she could meet with the business administrator on January 19, 2016 to submit evidence in support of her residency.  Petitioner failed to do so.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 10, 2016.

Petitioner alleges that she and her children are homeless and that they are sharing the housing of other persons due to loss of housing, economic hardship or similar reason.  Petitioner maintains that her living arrangement is overcrowded with no privacy and that her children sometimes cry because they are deprived from touching or using certain things in the house.

Respondent argues that the appeal is untimely.  Respondent maintains that petitioner resides at the out-of-district home owned by the children’s grandfather and are not homeless within the meaning of McKinney Vento. 

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’s determination that petitioner’s children are not homeless is dated January 15, 2016.  Although the letter states that it was transmitted “via hand delivery,” the record does not indicate when petitioner received it, so, affording mailing time, the appeal should have been commenced no later than February 22, 2016.  Respondent’s homeless liaison submitted an affidavit of service indicating that she accepted personal service of the petition herein on February 24, 2016.  Because the appeal was not commenced within the required 30 day time period, and petitioner has provided no excuse for the delay, it must be dismissed as untimely (see Appeal of C.P. and M.P., 55 Ed Dept Rep, Decision No. 16,843; Appeal of L.B., 50 id., Decision No. 16.129).

The appeal must also be dismissed on the merits.  Education Law §3209(1)(a) defines “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 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).

Petitioner’s children do not fit the definition of homeless children under either State or federal law.  The record indicates that they have a fixed, regular night-time residence in an apartment in a house owned by their grandfather.  There is no evidence in the record that such residence is inadequate.  The house is a three apartment row house, with one apartment occupied by petitioner, her children and three persons identified by petitioner as “family.”  Petitioner’s statement that the apartment is overcrowded, that there is no privacy and that the “children cry because they are deprived” is not supported by the record.  In fact, the record indicates that petitioner has her own bedroom and the children share a bedroom.  Petitioner has use of a kitchen, bathroom and living room. The apartment is well maintained, clean and neat.  While it is unfortunate that petitioner was forced to move from her in-district residence due to financial insecurity, there is no proof in the record that she lives in the kind of shelter or other accommodation described in Education Law §3209.  Thus, petitioner has failed to demonstrate that her children lack a fixed, regular and adequate night-time residence (see Appeal of T.C., 53 Ed Dept Rep, Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Nor has petitioner established that her current residence is temporary or transitional.  According to respondent’s business administrator, petitioner denied that she was continuing to search for housing.  She stated that she felt stable in her housing for the foreseeable future and that she believes that she has permanent housing with the children’s grandfather.  The record indicates that petitioner has been residing in the apartment since April 2015, and there is no evidence that petitioner must vacate her current residence or that there is a time limit as to how long she can reside there (Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129). 

Accordingly, based on the record before me, I do not find respondent’s determination that petitioner’s children are not homeless to be arbitrary, capricious or unreasonable.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s schools on her children’s behalf at any time, particularly if their living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.