Appeal of J.B., on behalf of her son J.B., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding residency and transportation.

Decision No. 16,221

(March 31, 2011)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bayport-Blue Point Union Free School District (“respondent”) that her son is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431, etseq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record indicates that petitioner’s son attended school in respondent’s district as a resident student during the 2009-2010 school year.  According to respondent, despite repeated attempts between July and November 2009, the high school clerk was unable to confirm petitioner’s address and telephone number.  In December 2009, the district received information that petitioner’s family had been living in Ronkonkoma, New York, outside respondent’s district, for approximately one year.

On or about January 27, 2010, petitioner provided the district with her out-of-district address.  In an affidavit, respondent’s director of registration (“director”) explains that on January 28, 2010, she informed petitioner that she would have to withdraw her son from respondent’s schools because she was not a district resident.  The director also states that, on or about February 24, 2010, the district enrolled petitioner’s son based on petitioner’s assertion that he was homeless.

Petitioner admits that she and her son are living in an apartment outside respondent’s district.  However, she claims that her living arrangement is “not considered permanent due to inability to make monthly payments.”  Petitioner explains that she and her son became homeless due to the fact that “mother [sic] was sick [and] hospitalized for almost entire month of December, rent backed up, unable to make payments for rent, it kind of snowballed.”

By letter dated December 2, 2010, the director informed petitioner that a determination had been made that her son was neither homeless nor a district resident and would be excluded from respondent’s schools as of January 10, 2011.  The letter explained that the bases for this determination were that petitioner’s current residence was outside respondent’s district and that a November 15, 2010 home visit by the district revealed such residence to be “fixed, adequate and regular.”  This appeal ensued.  Petitioner’s request for interim relief was denied on January 19, 2011.

Petitioner contends that her son is homeless within the meaning of McKinney-Vento and, therefore, is entitled to attend respondent’s schools and to be transported thereto.  Respondent argues that the appeal must be dismissed as untimely.  Respondent further contends that petitioner’s son is not homeless within the meaning of McKinney-Vento.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Respondent argues that the appeal is untimely because it was commenced more than 30 days after its December 2, 2010 determination.  While the record indicates that respondent notified petitioner of its determination by letter dated December 2, 2010, the record is unclear as to when petitioner actually received the notice.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be December 8, 2010.  Petitioner thus had to commence her appeal on or before January 7, 2011.  The affidavit of personal service submitted with the petition indicates that petitioner commenced her appeal by personal service upon respondent via the homeless liaison on January 6, 2011.  Therefore, I will not dismiss the appeal as untimely.

Turning to the merits, Education Law §3209(1)(a) defines a 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;
4. awaiting foster care placement; or
5. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; 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 ....[1]

Section 100.2(x) of the Commissioner’s regulations also conforms 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Based on the record before me, I find that petitioner has not proven that her son fits the definition of a homeless child.  Initially, I note that on the State Education Department’s form “Petition for an Appeal Involving a Homeless Child or Youth,” petitioner answered “No” to the question “Are the child’s/youth’s parent(s) or legal guardians homeless?”  Moreover, petitioner submits no evidence that she lacks a fixed, regular and adequate nighttime residence or that she is living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).  The district has produced sworn statements from both the director and a district security officer describing their November 15, 2010 visit to petitioner’s apartment as follows:

I observed that the apartment had a fully functional kitchen with appliances, running water, and an answering machine; two bedrooms with beds, televisions with cable service, and windows; a functional bathroom; a living room/dining area with windows that was furnished with dining room table [sic], chairs, couch [sic] and a computer with internet access; and mail addressed to the family was observed on [sic] the kitchen.  During the visit, the Petitioner indicated that she and the student had resided in the apartment for approximately a year and intended to remain in the apartment until she could afford to purchase a home.

Petitioner has submitted no reply or other evidence to refute these statements.

Additionally, petitioner has not carried her burden of establishing the facts upon which she seeks relief with respect to her claim that her current living arrangement is temporary because she is “unable to make monthly payments.”  Petitioner submits a November 1, 2010 letter from her landlord informing her of a rent increase and stating that if petitioner is “unable to pay the increase or pay in full on the 1st of the month consider this your 30 day notice to leave.”  The fact that petitioner is renting a residence and may be having difficulty in paying her rent does not make the residence temporary or transitional.  To the contrary, the record indicates that petitioner continues to live in the apartment, where she has resided for approximately one year, and there is no evidence that she has been evicted or otherwise forced to relocate (seeAppeal of S.D., 46 Ed Dept Rep 116, Decision No. 15,459).  Indeed, as noted above, the director and the district security officer explain that on November 15, 2010 – approximately two weeks after the landlord’s November 1, 2010 notice – petitioner stated that she intended to remain in the Ronkonkoma apartment until she could afford to purchase a home.

Moreover, while the record contains evidence that petitioner has experienced financial difficulties and has sought various forms of assistance, such evidence, by itself, does not establish that she is homeless under State or federal law.  Specifically, petitioner has submitted:  (1) a January 5, 2011 letter from a church outreach group stating that “this past year” she has received “food and financial aid for rent”; (2) an application for food stamps, which was denied based on a finding that her monthly household income exceeded program limits; (3) November 2010 and January 2011 notices from the New York State Office of Temporary and Disability Assistance denying her requests for assistance in paying rent arrears based on a finding that she is unable to maintain her monthly rent payments on an ongoing basis; and (4) a Suffolk County Department of Social Services “Speedy Request” form dated December 30, 2010 on which petitioner appears to have sought assistance in paying her rent, explaining that her husband “has been out of work since November, due to liver disease” and that she has “been having a hard time making the rent due to this loss of income.”[2]  While it is unfortunate that petitioner has been experiencing financial difficulties, which may be impacting her ability to pay her rent, this does not constitute homelessness.  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children do not apply here (seeAppeal of E.B., 47 Ed Dept Rep 94, Decision No. 15,638; Appeal of S.D., 46 id. 116, Decision No. 15,459).

On the record before me, petitioner has failed to demonstrate that her son is homeless under State or federal law.  Accordingly, I cannot find that respondent’s determination that petitioner’s son is not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on her son’s behalf at any time should her circumstances change and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.