Appeal of J.L. and C.V., on behalf of their children K.V. and A.V., from action of the Board of Education of the East Moriches Union Free School District regarding residency and transportation.

Decision No. 17,736

(August 22, 2019)

Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, attorneys for respondent, Charles T. Russo, Esq., of counsel

ELIA., Commissioner.--Petitioners appeal the determination of the Board of Education of the East Moriches Union Free School District (“respondent”) that their children (“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 described in this appeal, petitioners and the students resided at a location within respondent’s district (“the in-district residence”).  A.V. attended respondent’s middle school and K.V. attended Center Moriches High School as a non-resident student.[1]  According to petitioners, on or about August 28, 2018, the in-district residence was damaged when a faulty water pipe flooded the premises and rendered it uninhabitable.  Petitioners claim that, as a result of the flood, they and the students resided in a hotel, with relatives and in a camper located on the premises of the in-district residence.  The record reflects that in October 2018, petitioners’ family relocated to a single-family home outside respondent’s district (“the out-of-district residence”).

In November 2018, respondent’s superintendent learned that petitioners and the students no longer resided within respondent’s district but, instead, resided at the out-of-district residence.  The superintendent spoke to petitioner J.L., who confirmed that petitioners and the students resided outside of respondent’s district and claimed that the residence was temporary because the family’s lease expired in May 2019.

By letter dated November 6, 2018, which was hand-delivered to petitioners, respondent’s superintendent notified petitioners of his determination that the students no longer resided within respondent’s district and would be excluded from the district’s schools effective immediately.

Petitioners assert that, on or about November 7, 2018, they learned of their rights pursuant to McKinney-Vento.  Subsequently, according to petitioners, petitioner J.L. spoke to respondent’s homeless liaison (“liaison”) regarding transportation for the students between the out-of-district residence and respondent’s schools.

By letter dated November 9, 2018, respondent’s superintendent notified petitioners of his determination that the students were not homeless pursuant to McKinney-Vento and would be excluded from respondent’s schools effective December 17, 2018.  This appeal ensued.

Petitioners claim that they and the students are homeless within the meaning of McKinney-Vento.  Petitioners assert that the out-of-district residence is temporary because they must leave it by May 2019.[2]  Petitioners contend that they are doing their best to locate permanent housing within the district.  Petitioners state that if they are unable to locate a permanent residence within the district by May 2019, they will stay with the students’ grandmother, who resides within the district.  Petitioners maintain that district officials told them the students must “leave school immediately, without following the proper protocol or guidelines and without giving [them] proper notification as to allow [them] to provide ... the information in reference to [their] situation.”  Petitioners contend that respondent failed to adequately state the reasons for its exclusion determination, and that the mailing of the determination was delayed.  Petitioners further object to what they describe as inadequate and unsafe transportation arrangements for the students.

Respondent maintains that petitioners have failed to meet their burden of establishing that they are homeless pursuant to McKinney-Vento.

I must first address a procedural matter.  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 ....[3]

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).

Initially, I agree with petitioners that, for a period of time in August and/or September 2018, the students were homeless within the meaning of McKinney-Vento and Education Law §3209.  Petitioners have submitted unrebutted evidence that, in August and September of 2018, the in-district residence was rendered uninhabitable.  Petitioners assert that the home flooded on or about August 28, 2018 and that, thereafter, petitioners stayed in a hotel from August 30, 2018 to September 5, 2018.  As proof, petitioners submit an email from a vendor who worked with her insurance company confirming reservations for petitioners’ family at a hotel during this time period.  Thereafter, petitioners assert that they alternated between living with the students’ grandmother and at a camper located on the in-district address.  Eventually, through their insurance company, petitioners were able to rent a “winter rental” – i.e., the out-of-district residence – in October 2018.

As proof of the uninhabitability of the in-district address, petitioners submit a September 7, 2018 document captioned “Notice Before Summons” issued by the Town of Brookhaven declaring the in-district address “condemned.”  The document contains the following notations: (1) “Attic Finished Space w/o Permit & Occupied”; (2) “SM/CO not in hallway”[4]; (3) “Bedroom Door Lock”; and (4) [u]nsanitary cond. On 1st [f]loor.”  The letters also makes reference to the camper, indicating that a “Camper” was a “Prohibited Use (Front Yard).”  These notations corroborate petitioners’ explanation that the in-district residence was rendered uninhabitable, and that petitioners’ family resided, at least periodically, in a camper on the property.

Respondent argues that petitioners never, in fact, stayed at the hotel, and instead stayed with the students’ grandmother outside of respondent’s district, from August 28, 2018 through October 2018.  Respondent argues that the hotel reservations submitted by petitioners do not prove that petitioners and the students actually stayed at the hotel, and that the students’ grandmother admitted, in a written statement submitted with this appeal, that the students resided with her after the in-district residence flooded.  With respect to the hotel reservations, petitioners have submitted proof and sworn assertions regarding their stay at the hotel.  While respondent doubts petitioners’ explanation, respondent has produced no evidence in support of its argument.

With respect to alleged admissions by the students’ grandmother, in her written statement, the students’ grandmother asserts that:

My daughter and family became displaced from their rental home on August 28, 2018 due to a flood.  They were staying with me ... The Town [of Brookhaven] condemned the property because of the damage.  [Petitioner J.L.] and the children continued to stay with me, and although the insurance company offered them temporary living quarters at a hotel in Islandia, it was not an option since the children had began [sic] the school year.

Respondent contends that this statement shows that petitioners and the students continuously resided with the students’ grandmother from August 28, 2018 through October 2018, when petitioners began residing at the out-of-district address.  However, petitioners contend that, in accordance with their reservation, they stayed in the hotel from August 30, 2018 to September 5, 2018 and then began residing, alternatively, with the students’ grandmother and in the camper at the in-district address.  Petitioners also point out that the school year started on September 4, 2018, and thus, had not begun at the time petitioners were offered the hotel accommodations.  As evidenced by the parties’ contrasting interpretations, the students’ grandmother’s written statement is ambiguous.  Therefore, I find that the grandmother’s written statement has minimal probative value concerning the sequence of events between August 28, 2018 and October 2018.

In light of the above evidence, to the extent respondent determined that the students were never homeless, I find such determination to be arbitrary and capricious.  As a result, petitioners had the right to designate respondent’s district as the district of attendance (as the students’ district of origin) for the duration of the students’ homelessness and the remainder of the school year in which the students became permanently housed.[5]

However, I find that, at the time it rendered its decision regarding petitioners’ homeless status on November 9, 2018, respondent correctly determined that the students were not homeless.  At the time of this determination, petitioners resided at the out-of-district residence.  On appeal, petitioners offer no explanation of the nature or characteristics of the out-of-district residence, which is described in the record as a furnished single family home.  Indeed, petitioners do not even allege that the out-of-district residence is inadequate.  Therefore, on this record, petitioners have not met their burden of proving that the out-of-district residence, which they began living at in or about October 2018, is not fixed, regular, and adequate (see Appeal of T.B.-D., 58 Ed Dept Rep, Decision No. 17,605; Appeal of C.M., 57 id., Decision No. 17,312; Appeal of M.W., 46 id. 151, Decision No. 15,471).

Additionally, petitioners have not established that the out-of-district residence is temporary or transitional.  Petitioners assert that their current living arrangement is temporary because their lease expires in May 2019.  However, other than their conclusory statements, petitioners have not submitted any evidence that they need to vacate the premises or that there is a fixed time limit as to how long they can remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id. Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).  Indeed, petitioners submit no evidence (such as a lease or a notice of eviction) suggesting that they were, in fact, required to vacate the out-of-district residence in May 2019.  In analogous situations involving foreclosure, I have previously held that the mere threat of eviction 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 homeless determination (see e.g. Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608).  Additionally, although petitioners claim that they are actively trying to obtain permanent housing within the district, they provide no evidence of such efforts (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404).  Accordingly, on this record, I cannot find that the out-of-district residence is temporary or transitional.

Therefore, the record supports a finding that petitioners were permanently housed at the out-of-district residence as of November 9, 2018.  Consequently, petitioners were entitled to attend respondent’s schools for the remainder of the 2018-2019 school year, relief which they received by virtue of the automatic stay provisions of McKinney-Vento (42 USC §11432[g][3][E][i]) and State law (Education Law §3209[5][c]).  Thus, in spite of respondent’s erroneous determination that the students were never homeless, petitioners received all the relief to which they would otherwise be entitled because the students obtained permanent housing and, through the automatic stay provisions, remained enrolled in respondent’s district for the remainder of the 2018-2019 school year.

Finally, with respect to petitioners’ claim that they were not permitted to provide respondent with information regarding their residency, I note that respondent’s November 6, 2018 letter did not comply with the provisions of 8 NYCRR 100.2(y).  Section 100.2(y) provides that the written notice provided to parents must state, among other things, “the specific basis for the determination that the child is not a resident of the school district, including but not limited to a description of the documentary or other evidence upon which such determination is based” (8 NYCRR §100.2[y][6][ii]).  Here, respondent’s November 6, 2018 letter did not set forth the basis for its determination of nonresidency, as required by 8 NYCRR §100.2(y), nor did it apprise petitioners of their right to appeal such determination to the Commissioner of Education (see Appeal of Rivera, 57 Ed Dept Rep, Decision No. 17,221; Appeal of Leslie, 38 id. 194, Decision No. 14,013; Appeal of Daniels, 37 id. 557, Decision No. 13,926).  Accordingly, I admonish respondent to fully comply with the procedures established in 8 NYCRR §100.2(y) in the future.

Based on the record before me, petitioners have failed to demonstrate that they and the students lack a fixed, regular and adequate nighttime residence or that their residence is temporary or transitional within the meaning of McKinney-Vento.  Accordingly, I cannot find respondent’s determination that the students are not homeless and, thus, not entitled to attend the district’s schools or receive transportation under McKinney-Vento, to be arbitrary or capricious.  In light of this determination, I need not consider petitioners’ arguments concerning the transportation services offered by the district to the out-of-district residence.

Although the appeal must be dismissed, I note that petitioners retain 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.

I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE