Appeal of T.L., on behalf of her children D.N. and S.N., from action of the Board of Education of the Beekmantown Central School District regarding residency and transportation.

Decision No. 17,473

(August 7, 2018)

Stafford Owens Piller Murnane Kelleher & Trombley, PLLC, attorneys for respondent, Meghan E. Zedick, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Beekmantown Central School District (“respondent”) that her children, D.N. and S.N. (“the students”), 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 tuition-free or receive transportation.  The appeal must be dismissed.

Prior to the 2017-2018 school year, the students were enrolled in respondent’s district.  By letter dated August 9, 2017, petitioner informed the superintendent that she and the students had moved in with her boyfriend[1] at his residence in Plattsburgh, New York “so that we [could] move forward with plans to build a new house” within respondent’s district, and that the estimated date of completion was “late spring of 2018.”  The record reflects that petitioner’s boyfriend’s home is located outside the geographical boundaries of respondent’s district.

The superintendent indicated in an affidavit that, after receipt of petitioner’s letter, he spoke to petitioner by telephone, and she “denied being doubled up for financial reasons and further stated that she was not homeless.”  According to the superintendent, petitioner “[t]hereafter ... informed the district” that she would enroll the students in respondent’s district after their new home was constructed.  Subsequently, petitioner informed the district that she and her children were living in a camper on property located within respondent’s district where petitioner intended to build her home (“in-district property”).  Based on petitioner’s representations, the students were enrolled in respondent’s district prior to the start of the 2017-2018 school year.

According to the superintendent, representatives from the district’s registrar’s office visited the in-district property and observed a small camper and tents set up, but “it was clear that [p]etitioner and her children were not living there.”  Additionally, a real property record search revealed that petitioner was not the record owner of the property and that construction had not begun at the in-district property.

By letter dated November 7, 2017, the superintendent informed petitioner that she was neither a resident of the district nor homeless within the meaning of McKinney-Vento. This appeal ensued.

Petitioner contends that she and the students are homeless within the meaning of McKinney-Vento because, due to economic hardship, they are “doubled up” with her boyfriend at her boyfriend’s residence in Plattsburgh, outside the district.  

Respondent asserts that petitioner fails to demonstrate that the students lack a fixed, regular, and adequate nighttime residence and maintains that petitioner and her children are not homeless within the meaning of McKinney-Vento.

First, I must address two procedural matters. Petitioner argues that I should strike respondent’s answer because the accompanying affidavit of service predates the date upon which service was effectuated.  As proof, petitioner submits an affidavit of service indicating that a notice of appearance was personally served on her on December 19, 2017.  At the outset, I note that respondent could have served its answer and subsequent documents by mail, which would only have required that the affiant indicate the date on which he or she placed the pleading in the mail or delivered it to an employee or agent of a private mail service (see 8 NYCRR §275.8[a]).  Nevertheless, petitioner’s claim of improper service is without merit because the affidavit of service dated December 19, 2017 solely pertains to service of a notice of appearance by counsel for respondent, which was apparently served on that date.  The record also contains an affidavit of personal service for respondent’s answer (which also indicates that an additional copy of the notice of appearance was also served) dated December 20, 2017, the date the parties agree that the answer was personally served.  Accordingly, there is no discrepancy between the affidavits of service and I decline to strike respondent’s answer, which was served within the timeframe prescribed by 8 NYCRR §275.13.

 Petitioner submitted a reply in this matter to which respondent objects.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, Education Law §3209(1)(a) defines “homeless child” as:

1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
3. abandoned in hospitals; or
4. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
5. an unaccompanied youth ...; or

2. a child or youth who has a primary nighttime location that is:

1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....[2]

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has failed to meet her burden of establishing that the students are homeless under State or federal law. The record reflects that, at the time of this appeal, petitioner and the students were residing in her boyfriend’s single-family home outside respondent’s district.  Although petitioner previously asserted that she and her children were living in a camper on property located within respondent’s district, petitioner indicates in both her verified petition and reply that she and the students currently reside at the out-of-district address.  Petitioner indicates that, at the out-of-district address, the “children have their own bedrooms.”  While petitioner asserts that “many of their personal belongings are boxed in storage ... [d]ue to limited space and the temporary nature of the arrangement,” petitioner submits no proof of this assertion nor does she explain how these circumstances render the residence inadequate (see Appeal of V.B., 57 Ed Dept Rep, Decision No. 17,421).  Thus, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate night-time residence (see Appeals 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).

Moreover, petitioner has not established that her residence is temporary or transitional under McKinney-Vento.  The record indicates that petitioner and the students have been residing outside the district’s geographic boundaries with petitioner’s boyfriend since at least August 9, 2017.  Petitioner asserts that “continued tenancy is uncertain” and, together with her reply, submits a Summons and Notice indicating that the out-of-district address has entered into foreclosure.  However, even assuming that the property is in foreclosure, I have previously held that the mere threat of eviction due to foreclosure without a specific date as to when the premises must be vacated is insufficient to establish that a residence is temporary or transitional for purposes of a homelessness determination (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608).  Thus, the prospect of foreclosure alone does not demonstrate that the residence is temporary (Appeal of R.D., 56 Ed Dept Rep, Decision No. 16,945).

Based on the record before me, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate nighttime residence or that the out-of-district address is temporary or transitional within the meaning of McKinney-Vento.  Accordingly, I cannot find that respondent’s determination that the students are not homeless and, thus, not entitled to transportation under McKinney-Vento, is arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains 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.

In light of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE