Decision No. 17,871
Appeal of M.G., on behalf of her children G.G., G.G., and L.G., from action of the Board of Education of the Lindenhurst Union Free School District regarding residency and transportation.
Decision No. 17,871
(July 6, 2020)
The Law Office of Suzanne Myron, attorney for petitioner, Suzanne Myron, Esq., of counsel
Law Offices of Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel
TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Lindenhurst Union Free School District (“respondent”) that her children G.G., G.G., and L.G. (collectively, “the students”), are not homeless within the meaning of the McKinney-Vento Homeless Education 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 indicates that, in or about June 2015, petitioner and the students were forced to leave their in-district residence. Petitioner, her spouse and the students subsequently moved into petitioner’s parents’ home, which is located outside of respondent’s district, in Amityville, New York (the “out-of-district residence”). At that time, respondent allowed petitioner’s daughter, G.G., the only one of the three students at issue in this appeal who was enrolled in the district, to attend its schools as a homeless student. Petitioner and her family remained at the out-of-district residence until in or about November 2016, when petitioner’s parents requested that they leave due to overcrowding.
Petitioner asserts that she and the students thereafter “went to a series of dirty hotels and motels, and friends[’] homes.” According to petitioner, in August 2017, her son G.G., who suffers from multiple disabilities, became ill due to poor housing conditions at a motel. Thereafter, in September 2017, petitioner’s parents permitted her, the student’s father, and the students to move back to the out-of-district residence. According to the record, respondent continued to permit petitioner’s daughter, G.G., to attend its schools as a homeless student. Respondent further permitted petitioner’s two other children to attend its schools as homeless students when they became eligible to attend respondent’s schools by virtue of age.
On December 9, 2017, respondent’s homeless liaison contacted petitioner to ascertain her current homeless status. Petitioner indicated that she and the students continued to live temporarily at the out-of-district residence and were still searching for permanent housing.
On May 11, 2018, the homeless liaison spoke to petitioner on the telephone. Petitioner indicated that she and her family continued to temporarily reside at the out-of-district residence. Petitioner also indicated that she and the students stayed with a grandparent at a location in Wantagh, New York on Tuesdays, Wednesdays, and Thursdays.
On August 23, 2018, the homeless liaison spoke to petitioner on the telephone. Petitioner indicated that the students continued to reside temporarily at the out-of-district residence, “but were saving up for a house.”
In or about February 2019, respondent conducted surveillance on six days over a two-week period and determined that petitioner and the students resided at the out-of-district residence.
On April 1, 2019, the homeless liaison spoke to petitioner on the telephone to determine the students’ homeless status for the 2019-2020 school year. Petitioner indicated that she and her family continued to reside at the out-of-district residence. Petitioner also stated that she and the students remained at the out-of-district residence because “they [were] still trying to save for a house.” Petitioner further indicated that her parents did not charge her rent to live at the out-of-district residence. With respect to the adequacy of the out-of-district residence, petitioner “stated that [G.G. and L.G.] share a bedroom, but there was enough room for everyone in the house.” The homeless liaison then advised petitioner that it was his determination that the students were no longer homeless because the out-of-district residence was a “fixed, regular and adequate nighttime residence” that “had become a permanent living arrangement.”
In a letter dated April 3, 2019, respondent’s homeless liaison indicated that the students were no longer homeless as defined by McKinney-Vento and Education Law Section §3209. The homeless liaison indicated that the following information supported his determination:
- Multiple conversations ... on 12/9/2017, 5/11/2018, and 4/1/2019 where you confirmed each time that you were living at [the out-of-district residence];
- District surveillance conducted in March 2019 confirms that you and your children are living at [the out-of-district residence]
- The fact that the home you are living in ... is fixed, adequate, and regular; and
- What may have begun as a temporary living situation has now become your new residence that is fixed, adequate, and regular.
Petitioner’s oldest daughter, G.G., was permitted to remain enrolled in respondent’s schools through the end of the 2019-2020 school year because it was her terminal year in such building (see Education Law §3209[c]). However, the two younger students were excluded from respondent’s school after June 26, 2019. This appeal ensued.
Petitioner argues that the students’ living arrangements are not fixed, regular or adequate as she and the students are living doubled-up within a single-family home. Petitioner further asserts that the students’ living situation is temporary because her mother plans to sell the out-of-district home by December of 2019 when they plan on retiring.
Respondent argues that its determination was rational and that petitioner has failed to meet her burden of proving that the students are homeless as defined by McKinney-Vento and Education Law §3209.
First, I must address the procedural issues. Respondent objects to the scope of petitioner’s reply and requests that, if I accept any newly raised contentions in the reply, I also accept a sur-reply affidavit which it submits pursuant to 8 NYCRR §275.3. 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. Consequently, I need not accept respondent’s sur-reply affidavit.
Respondent also objects to the scope of petitioner’s memorandum of law. A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799). Therefore, I have not considered those portions of the memorandum of law that raise new assertions and arguments that were not contained in the petition.
Turning to the merits, Education Law §3209(1)(a) defines “homeless child” as:
- a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
- sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
- living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
- abandoned in hospitals; or
- 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;
- an unaccompanied youth ...; or
- a child or youth who has a primary nighttime location that is:
- a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
- 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 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 proving that the students lack a fixed, regular, and adequate nighttime residence. In this respect, petitioner asserts that she, her spouse, and the students are living “doubled up with [her] parents.” Petitioner explains that this home has four bedrooms, and that: (1) her parents sleep in one bedroom; (2) petitioner and her spouse sleep in the second bedroom; (3) petitioner’s daughter, G.G., sleeps in the third bedroom; and (4) petitioner’s children, G.G. and L.G., share the fourth bedroom. While petitioner claims that she and the students are homeless because they are sharing the housing of others, the mere fact that two families reside in a house does not, ipso facto, render petitioner homeless (see e.g. Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146 [mere assertion that parent and student are “doubled up” does not establish that a residence is inadequate or temporary]).
Petitioner further asserts that “[w]e have our furniture and clothes in storage waiting for the time when we can leave for a permanent home ....” However, petitioner has submitted no evidence (e.g. photographs) of their living space or their belongings to substantiate such a claim (compare Appeal of Rankine, 59 Ed Dept Rep, Decision No. 17,794). Absent proof of this assertion or any explanation of why the out-of-district residence cannot house petitioner’s belongings, I cannot accept petitioner’s unsubstantiated assertion that the out-of-district residence is inadequate due to overcrowding.
Moreover, petitioner has not established that the out-of-district residence is temporary or transitional in nature. Petitioner admits that she and the students have resided at the out-of-district residence continuously since September 2017. Although petitioner asserts that her parents have told her that they expect to sell the out-of-district residence before the end of 2019, there is no information that such a sale of the out-of-district residence is imminent (see Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537). On the contrary, by letter dated January 17, 2020, in response to a request for additional information by my Office of Counsel, petitioner indicated that she and the students continue to reside at the out-of-district residence. Petitioner’s argument that she is unaware how long she and the students may continue to reside at the out-of-district residence does not, in of itself, demonstrate that petitioner will lose her housing imminently, or at any particular time in the near future (see Appeals of M.S., 55 Ed Dept Rep, Decision No. 16,792; Appeal of A.W., 53 id., Decision No. 16,559).
The remaining evidence submitted by petitioner with her petition does not establish that the students lack a fixed, regular or adequate nighttime residence. First, petitioner submits two individualized education programs (“IEPs”) developed by respondent for student G.G. Respondent, however, does not dispute G.G.’s eligibility for special education and the IEP otherwise does not include any information concerning the fixed, regular or adequate nature of the out-of-district residence. Second, petitioner submits two letters concerning her spouse’s efforts to obtain gainful employment. These letters establish that: (1) petitioner’s spouse was appointed to a provisional position with Suffolk County effective June 19, 2017; and (2) the spouse obtained permanent appointment to this position “effective April 9, 2018.” While these letters have some bearing on petitioner and her family’s economic circumstances, these documents generally suggest that the family’s economic situation has improved, thus diminishing any suggestion of economic hardship. Third, petitioner submits medical documentation concerning her son G.G.’s medical conditions. As with petitioner’s daughter G.G.’s IEPs, it appears this information is undisputed and, in any event, irrelevant to a determination of whether the out-of-district residence is fixed, regular and adequate.
Petitioner also complains that the homeless liaison improperly denied her an opportunity to meet with him concerning her claim of homelessness. Petitioner alleges that the homeless liaison told petitioner, in an April 1, 2019 phone call, that there was no point in meeting since he had “already made up [his] mind” concerning petitioner’s homeless status. The homeless liaison offers the following recollection of this exchange in an affidavit:
We then discussed the possibility of the family meeting with me regarding their homeless status, wherein I advised petitioner that we could certainly meet if she wanted to ... when she inquired whether there was any point in meeting, I stated that unless she had additional information or documents to present to me, there may not be a point .... At no time during this conversation did I tell Petitioner that there was no point in meeting because a decision letter had already been sent.
While petitioner asserts that the homeless liaison’s allegations “are false,” the evidence in the record supports the homeless liaison’s recollection. For example, although petitioner states that the homeless liaison “denied [her] a meeting,” the record contains an email from petitioner to the homeless liaison dated April 1, 2019 in which petitioner wrote:
i am sorry to bother you i guess i didn’t understand when you said to come in and talk to you about it. I was just caught off guard a little bit. But it you need me to come in and talk to you and try to explain my situation I can (sic).
Thus, contrary to her argument on appeal, petitioner stated in this email that the homeless liaison invited her to “come in and talk to [him] about” the district’s homeless determination. Therefore, petitioner’s claim is without merit.
Finally, I do not find that the case of L.R. v. Steelton-Highspire School District (No. 1:10-CV-00468, 2010 WL 1433146 [M.D. Pa. Apr. 7, 2010]), cited by petitioner, compels a contrary conclusion. In that case, the U.S. District Court for the Middle District of Pennsylvania granted a parent’s motion for preliminary injunction and permitted an allegedly homeless student to continue her enrollment in a school district during the pendency of the judicial action. In so concluding, the court considered four factors, one of which was the parent’s likelihood of success on the merits. Thus, that case is distinguishable from the facts of this appeal because: (1) it only involved the issue of whether the student would be enrolled during the pendency of the appeal, not a final determination on the merits; and (2) likelihood of success on the merits was only one of four factors that the court weighed in reaching its determination. Additionally, the facts of that case are distinguishable from the instant appeal, as the school district’s coordinator of pupil services in that case “determined that [the student] was not homeless based only on the fact that his situation had not changed,” which the court characterized as “arbitrary.” Here, by contrast, respondent considered the evidence submitted by petitioner, the characteristics of petitioner’s living arrangements and the lack of evidence that the arrangement was transitional in nature and concluded, based largely on undisputed information provided by petitioner, that the out-of-district residence was fixed, regular and adequate.
Accordingly, based upon the record before me, I find that petitioner has not met her burden of proving that the students lack a fixed, regular and adequate nighttime residence and therefore, respondent’s determination that the students are not homeless is not arbitrary or capricious.
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 the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner has two additional children, D.H. and N.H., who are not the subject of this appeal and no longer reside with petitioner. According to petitioner, D.H. and N.H. left petitioner’s household due to overcrowding and now reside at a different residence.
 In response to a request for additional information by my Office of Counsel, petitioner indicated by letter dated January 17, 2020, that she and the students continue to reside at the out-of-district residence.
 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.
 In any event, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of R.E.W., 55 id., Decision No. 16,808).
 The record reflects that this email was originally sent to an incorrect email address for the homeless liaison, but that the homeless liaison eventually received it and corresponded with petitioner.
 See L.R. ex rel. G.R. v. Steelton-Highspire Sch. Dist., No. 1:10-CV-00468, 2010 WL 1433146, at *3 (M.D. Pa. Apr. 7, 2010) (“In determining whether a preliminary injunction should issue, a court must consider: (1) the extent to which the moving party will suffer irreparable harm without injunctive relief; (2) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; (3) the likelihood that the moving party will succeed on the merits; and (4) the public interest”).