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Decision No. 17,481

Appeal of E.D., on behalf of her children A.D. and C.D., from action of the Board of Education of the West Islip Union Free School District regarding residency and transportation.

Decision No. 17,481

(August 13, 2018)

Law Offices of Thomas M. Volz, PLLC, attorneys for respondent, Michael G. Vigliotta, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the West Islip Union Free School District (“respondent”) that her children A.D. and C.D. (“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 or receive transportation.   The appeal must be dismissed.

The record reflects that prior to the events leading to this appeal, petitioner and the students resided in respondent’s district.  On July 11, 2017, respondent’s Director of Pupil Personnel Services and Homeless Liaison (“liaison”) was contacted by petitioner, who sought to designate the students as homeless.

By letter and facsimile dated July 18, 2017, petitioner informed the liaison that she and the students were vacating their in-district residence and temporarily moving in with petitioner’s parents in Babylon, New York (“out-of-district residence”).  She explained that she was forced to vacate her in-district residence because the owner lacked “a rental permit or permission from the town to change the occupancy.”

By email dated August 31, 2017, the liaison notified petitioner that the students were considered homeless pursuant to McKinney-Vento.

During the 2017-2018 school year, the liaison had multiple conversations with petitioner about her homeless status.  By email dated April 3, 2018, petitioner informed the liaison that she continued to be “doubled up at my moms [sic] house.” The liaison attests that she expressed to petitioner during such conversations that her living arrangement appeared to be fixed, regular and adequate.

By letter dated April 12, 2018, the liaison informed petitioner of her determination that she and the students were not district residents or homeless and that the students would be excluded from respondent’s schools effective June 22, 2018.  Specifically, the letter advised that the liaison had determined that the out-of-district residence was a fixed, regular and adequate nighttime residence.  The letter also informed petitioner of her right to appeal this determination pursuant to §310 of the Education Law.

The liaison attests that subsequent to the determination letter, petitioner continued to insist that the district’s determination was in error and that her current living arrangement is inadequate and that a more thorough review of the house would demonstrate its inadequacy.  In response to petitioner’s concerns, the liaison arranged to have a school social worker conduct a site visit of the out-of-district residence.  The social worker reported that petitioner and her children resided on the second floor of the house, with petitioner having a bed in a loft area and her children sharing a bedroom with two twin beds. She observed that petitioner and her children shared a family room, kitchen and bathroom with the children’s grandparents. She attests that the grandmother told her that there was no financial agreement with petitioner and that petitioner and her children had been staying with her since July 2017.  The social worker attests that the grandmother did not indicate that there was any time limit for how long petitioner and the students could continue to live at the out-of-district residence.  Finally, she attests that following the site visit, she spoke to petitioner over the telephone and told petitioner that she had concluded that the out-of-district residence is a fixed, regular and adequate nighttime residence.  This appeal ensued.

Petitioner contends that she and the students are homeless within the meaning of McKinney-Vento.  Petitioner maintains that she is “doubled-up at [her] mother’s house” and that she and the students [share] one bedroom and a small loft area.  Petitioner maintains that she has been searching for an affordable house or rental within the district but needs to have a court case against her former landlord resolved before she can afford to move from her mother’s home.

Respondent asserts that the appeal must be dismissed as moot and that petitioner and the students are not homeless within the meaning of McKinney-Vento.

Respondent contends that the appeal must 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).

Pursuant to §276.5 of the Commissioner’s regulations, respondent’s counsel requested permission to submit an amended verified answer and a Supplementary Affidavit in Support of Dismissal from the liaison (“supplementary affidavit”) dated June 4, 2018 in support of respondent’s contention that, in light of subsequent events, the appeal should be dismissed as moot.  In the supplementary affidavit, the liaison states that petitioner submitted to respondent two letters indicating that, effective June 22, 2018, the date on which the students were excluded from the district’s schools, the students “will no longer be attending Udall Road Middle School” because they were moving to the out-of-district residence (the grandmother’s residence) and would instead be attending “Robert Moses Middle School” and “North Babylon High School, respectively.”  The letters gave respondent permission to release education and health records.  The letters were attached as exhibits to the supplementary affidavit.

In response, petitioner submits a typewritten statement explaining that she submitted the letters “because [she] was advised to do so” and that she was “informed that should the appeal not be granted, if [she] didn’t have these completed there could be a delay in records being released.” 

I accept the supplementary affidavit and its exhibits as well as petitioner’s letter of explanation for filing as part of the record pursuant to 8 NYCRR §276.5.  In so doing, I reject respondent’s argument that petitioner’s letter should be rejected because petitioner has not technically complied with §276.5 by not affirmatively seeking leave to submit such document.  Petitioner is not represented by counsel and the letter is in direct response to respondent’s request for leave to submit an amended answer and supplemental affidavit.  While the letter is not in the form of an affidavit, that goes to its weight and not to its acceptance for filing.[1]

The appeal must be dismissed as moot.  The forms submitted by petitioner for the release of student records very clearly state that, as of June 22, 2018, the students will not be attending their former schools in respondent’s school district and will instead be attending schools in the school district in which the out-of-district address is located.  Petitioner seeks to explain her submission of the forms, but does so in an unsworn letter and not in an affidavit or affirmation.  While I am not persuaded by respondent’s argument that these documents clearly establish that petitioner has admitted that she resides at the out-of-district residence, these documents very clearly indicate petitioner’s intent to withdraw her children from respondent’s schools, thereby rendering this appeal moot.

 Even if it were not dismissed as moot, the appeal would 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 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
  1. 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).

On this record, the students do not meet the definition of homeless children under either State or federal law.  According to the petition, since at least July 2017, petitioner and the students have lived in the out-of-district residence.  While the petition makes a conclusory allegation that she and her children lack a fixed, regular and adequate nighttime residence, she has provided no evidence that her housing is inadequate.  The record indicates that despite petitioner’s assertion that she is “doubled-up” in her mother’s home, a home visit showed that petitioner, her mother, father and the students share a clean, well-kept home.  The home includes a family room and fully functioning kitchen and bathroom to which all residents have access.  Petitioner and her family regularly dine together.  Petitioner sleeps in a loft area which includes a bed, clothes storage system and television.  The students share a bedroom with two twin beds, a nightstand and dresser.  Petitioner has not proven that this residence is inadequate.  Thus, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate nighttime 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; Appeal of L.P., 50 id., Decision No. 16,107).

There is also no evidence in the record that petitioner’s residence is temporary or transitional.  Petitioner and the students have been living in the out-of-district residence since July 2017 and petitioner does not claim or demonstrate that she and the students must vacate the current residence or that there is a time limit as to how long she and the students can reside there (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129; Appeal of I.U., 50 id., Decision No. 16,095; Appeal of M.W., 46 id. 151, Decision No. 15,471).  In fact, the record reflects that petitioner’s mother indicated to respondent that there was no limit on how long petitioner and the students could reside in her home.  Further, although petitioner claims that she is actively trying to obtain permanent housing within the district, she provides no evidence of these alleged efforts (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404).

The record indicates that petitioner told respondent that she had to leave her in-district residence due to a dispute with the landlord and that she was unable to locate suitable housing in the district due to financial difficulties resulting from an ongoing litigation with this former landlord.  While I am sympathetic to petitioner’s situation, on this record, petitioner has failed to demonstrate that she and the students currently 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.

On this record, I cannot conclude that respondent’s determination that petitioner’s children are not homeless is arbitrary, capricious or unreasonable.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of the students in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.




[1] I need not address respondent’s request for leave to serve an amended answer that includes the affirmative defense of mootness in light of the Commissioner’s authority under 8 NYCRR §276.9 to dismiss an appeal as moot at any stage of the proceedings.


[2] Education Law §3209(1)(a-1) excludes from the definition of “homeless child” a child in a foster care placement or receiving educational services under certain provisions of Education Law §3202 or Articles 81, 85, 87 or 88 of the Education Law, circumstances not presented in this appeal.