Decision No. 17,129
* Subsequent History: Matter of N.L. v. Elia; Supreme Court, Albany County (Walsh, J.), Judgment dismissed petition to review; December 30, 2019. *
Appeal of N.L., on behalf of her children G. J-B. and G. J-B., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.
Ingerman Smith, L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel
Decision No. 17,129
(July 19, 2017)
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Baldwin Union Free School District (“respondent board”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Assistance 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 two older children have been enrolled in respondent’s schools since the 2010-2011 school year. In the fall of 2014, the children’s father notified respondent that the students no longer resided at the in-district address, rather they lived with petitioner at an address outside of the district’s geographic boundaries (“out-of-district address”). Subsequently, the district commenced a residency investigation. On six weekday mornings, from October 27 to November 7, 2014, the district conducted surveillance on the out-of-district address. On five of the six mornings, the students were observed exiting the out-of-district address in the morning and boarding a yellow van. Additionally, on five weekday mornings, from October 27 to October 31, 2014, surveillance was conducted on the in-district address. On each of these mornings, surveillance was conducted for over two hours, during which time neither of the students were observed at the in-district address.
By letter dated November 18, 2014, the district’s director of pupil services (“director”) notified petitioner that the students’ residency was in question and provided her with an opportunity to meet to discuss their residency on November 25, 2014. According to respondent, at that meeting, petitioner indicated that she and the students had been staying at the out-of-district address because she was going through a divorce and they were unable to remain at the in-district address.
Based on the information received at that meeting, petitioner was referred to the district’s homeless liaison. At a meeting with the homeless liaison, petitioner stated that she was unable to remain at the in-district address because of domestic issues. Following that meeting, the homeless liaison designated the students as homeless and permitted them to remain enrolled in the district, but requested that petitioner provide documentation from the non-profit organization that had been assisting petitioner as a result of the domestic issues. Thereafter, the homeless liaison conducted a home visit at the out-of-district address. After the visit, the homeless liaison determined he did not believe the housing to be adequate because petitioner and her three children were sleeping in one small bedroom and that the living situation appeared to be temporary. The homeless liaison also obtained petitioner’s consent to speak with the non-profit organization, which indicated that petitioner was not involved in their housing program and that they did not consider petitioner’s living arrangement to be temporary.
In the spring of 2015, petitioner attempted to register her youngest child for kindergarten in the district. Petitioner was advised that, as she was no longer a district resident and the child was not enrolled in the district prior to becoming homeless, she was not permitted to enroll the child in the district’s schools. In the fall of 2015, the district’s registrar confirmed that petitioner had enrolled the youngest child in the Freeport Union Free School District (“Freeport School District”) and that the registration papers for that child indicated that petitioner was permanently housed in that district.
Based on the information received from the Freeport school district and the non-profit organization, by letter dated January 6, 2016, the director notified petitioner that the district had reason to believe that she resided outside the district and no longer qualified as homeless under McKinney-Vento and requested a meeting with petitioner to discuss the determination. On or about January 22, 2016, petitioner and her sister met with the director and the homeless liaison. At that time, petitioner indicated that she remains temporarily housed and, as part of the divorce proceedings, she is seeking an order to allow her to move back into the marital home at the in-district address. Based on the representations made at that meeting as well as a letter from petitioner’s divorce attorney, petitioner’s two older children were permitted to remain enrolled in the district.
In the fall of 2016, the homeless liaison requested information regarding the status of petitioner’s living situation. At that time, petitioner indicated that she remained temporarily housed at the out-of-district address. On or about November 1, 2016, the homeless liaison conducted a home visit at the out-of-district address. The liaison avers that during the visit, he observed that petitioner’s three children share one “very large” bedroom, that petitioner sleeps in a separate bedroom on the same floor of the house, and that petitioner’s sister “sleeps in a room downstairs, which had been repaired since [the liaison’s] previous visit.” The liaison further avers that he saw no evidence that the children’s grandmother shared the children’s bedroom. Based on that visit, the homeless liaison determined that the living arrangement was fixed, regular, and adequate. By letter dated December 5, 2016, the director informed petitioner of her determination that the out-of-district address was fixed, regular and adequate, and that petitioner’s children were not considered homeless pursuant to McKinney-Vento. The letter further advised petitioner that the students would be excluded on January 6, 2017. This appeal ensued.
Petitioner contends that she and her children are homeless within the meaning of McKinney-Vento because they share the housing of another person due to economic hardship or similar reason. Petitioner states that she was forced to leave her in-district home because of a divorce proceeding and domestic issues and that she has “lost income” due to an automobile accident. Petitioner states that she resides with her sister and that the living arrangement is temporary.
Respondent asserts that petitioner fails to demonstrate a clear legal right to the relief requested or that respondent’s actions were arbitrary, capricious or an abuse of discretion. Respondent maintains that petitioner and her children are not homeless within the meaning of McKinney-Vento.
First I must address a procedural matter. By letter dated March 28, 2017, petitioner submitted a reply to the district’s answer. Respondent contends that the reply must be rejected because it is untimely and it alleges new facts that were not contained in the petition. A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710). The answer was served by mail on January 25, 2017. Thus, petitioner’s reply should have been served no later than February 8, 2017. Petitioner’s reply was received by the district on April 4, 2017, almost two months late. The reply, therefore, is untimely and I have not considered it.
At all times relevant to this appeal, Education Law §3209(1)(a) defined “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 ...
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 this record, the students do not meet the definition of a homeless child under either State or federal law because petitioner has failed to demonstrate that the students lack a fixed, regular and adequate night-time residence and are homeless.
The record indicates that as a result of the separation and concerns about domestic violence and alleged physical and verbal abuse of her children, petitioner left the in-district residence and moved into her sister’s home outside the district. Petitioner shares the home with her three children, her sister, and her mother. Petitioner asserts that the three children all share a room and have separate sleeping areas, and that their grandmother shares the space as well. As noted above, during a home visit, the homeless liaison observed that the bedroom was “very large” and noted no indication that petitioner’s mother also shared the room. Additionally, petitioner states that she and her sister each sleep in their own, separate beds in other rooms. On this record, petitioner has not met her burden of proving that the residence is inadequate (see Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812; Appeal of S.T., 53 id., Decision No. 16,619; Appeal of T.B., 48 id. 4, Decision No. 15,774).
Moreover, petitioner has not established that her current residence is temporary or transitional. Petitioner makes a blanket assertion that the living situation is “transitional,” but provides no evidence to support such claim, other than evidence of a pending divorce action that could result in an order allowing petitioner to move back into the in-district residence. However, the record indicates that petitioner has been residing at the out-of-district residence since 2012. The record indicates that petitioner’s sister is allowing petitioner and her children to stay with her and there is no evidence that petitioner needs to vacate the residence or that there is a fixed time limit as to how long she may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129).
While it is unfortunate that petitioner felt the need to leave the in-district residence due to, inter alia, economic hardship” and “domestic violence,” based on the record before me, petitioner has failed to demonstrate that she and the students 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. Accordingly, I cannot find respondent’s determination that petitioner is not homeless to be arbitrary or capricious.
Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on behalf of the students at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 I note that during the first two days of surveillance, investigators reported surveilling both the in-district and out-of-district address.
 Effective October 1, 2016, §11432(g)(3)(E)(i) of the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, now requires that if a dispute arises surrounding a child’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 USC §11432[g][E][i]). Therefore, no application for a stay in this appeal was necessary.
 Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (42 USC §11434a). Effective April 20, 2017, children or youth awaiting foster care placement are no longer included in the definition of “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017. However, those changes are not relevant to a determination in this appeal.