Appeal of JANE DOE, on behalf of her children, from action of the Board of Education of the Maine-Endwell Central School District regarding residency.

Decision No. 18,456

(July 29, 2024)

Coughlin & Gerhart, LLP, attorneys for respondent, Mark D. Spinner, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Maine-Endwell Central School District (“respondent”) that her three children (the “students”) are not district residents.  The appeal must be dismissed.

Petitioner and the students previously resided at a home within respondent’s district (the “in-district address”).  On October 2, 2023, one of respondent’s school resource officers learned that petitioner had been arrested.  According to the arrest report, petitioner lived at a location outside of the district in Endicott, New York (the “out-of-district address”).  Respondent subsequently contacted the landlord of the in-district address, who indicated that petitioner had been evicted due to non-payment of rent. 

On October 13, 2023, the executive assistant to the superintendent spoke with petitioner, who stated she had moved to the out-of-district address believing it was within the district’s boundaries.  Petitioner also indicated that she was unwilling to provide her address because she was engaged in ongoing legal proceedings with an individual who threatened her family’s safety (“John Doe”).  Petitioner invited the assistant to contact a Child Protective Services (CPS) caseworker and her attorney to corroborate her explanation. 

The assistant contacted petitioner’s attorney and the caseworker.  The attorney indicated that he “had just taken the case [] and could not provide further information at th[at] time.”  The CPS caseworker confirmed that petitioner had been evicted for non-payment of rent.  The caseworker further indicated that petitioner’s dispute with John Doe was “unrelated to [the] out-of-district relocation” and opined that, following a home visit, he did not believe there was any “imminent threat to the children’s safety.”

Based on representations by petitioner that she intended to return to the district, respondent afforded petitioner multiple extensions of time to demonstrate that she resided within the district or that the students were homeless.  In a letter dated December 19, 2023, respondent concluded that the students were ineligible to attend its district on the basis of residency or homelessness.  This appeal ensued.

Petitioner asserts that she left a home within respondent’s district to flee a “disturbed individual” who presented a threat to her and her family.   She thereafter asserts that she lived in several “temporary locations.”  Petitioner does not disclose the location of these addresses, arguing that they are “confidential” under the terms of a family court order.  For relief, petitioner seeks a determination that the students are entitled to attend respondent’s school as homeless students.[1]

Respondent asserts that the appeal must be dismissed for improper service.  On the merits, respondent contends that the students are neither district residents nor homeless.

The appeal must be dismissed for lack of personal service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Here, petitioner’s affidavit of service indicates that she served the petition on an employee of the school district, a personnel clerk, who she indicates was authorized to accept service on behalf of the district.  Respondent denies that the personnel clerk was so authorized.  Petitioner did not address this defense in her reply or otherwise respond to this contention.  Accordingly, the appeal must be dismissed (Appeal of T.A., 63 Ed Dept Rep, Decision No. 18,367; Appeal of N.L., 62 id., Decision No. 18,164).

Even if the appeal were not dismissed for improper service, it would be dismissed on the merits.  Pursuant to Education Law § 3209 (1) (a), a “homeless child” is  (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “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 section 100.2 (x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a [2]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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 proof.  Initially, the family court order in question does not authorize petitioner to shield her address from respondent.  Section 154-b of the Family Court Act authorizes parties and children in Family Court proceedings “to keep [a party or the child’s] address confidential from any adverse party or the child, as appropriate, in any pleadings or other papers submitted to the court” (Fam Ct Act § 154-b [2] [a] [emphasis added]).  Thus, confidentiality designations under Family Court Act § 154-b are only applicable to the underlying family court proceeding.  As such, petitioner was required to provide her address to respondent as a condition of continued enrollment (see generally Longwood Cent. Sch. Dist. v Springs Union Free Sch. Dist., 1 NY3d 385, 389 [2004]; 8 NYCRR 100.2 [y] [3]).[2]

Petitioner has otherwise failed to prove that the students are homeless.  While petitioner contends that she has resided in numerous “temporary locations” and hotels, she has submitted no evidence in support thereof.  Moreover, she has not described the adequacy or characteristics of any residence where she claims to have resided.  Absent such proof, I cannot find that the out-of-district address is inadequate, temporary, or transitional (see Appeal of V.M., 64 Ed Dept Rep, Decision No. 18,428). 

THE APPEAL IS DISMISSED.

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