Appeal of S.A., on behalf of her child A.L., from action of the Board of Education of the Deer Park Union Free School District regarding residency and transportation.

Decision No. 16,834

(October 19, 2015)

Frazer and Feldman, LLP, attorneys for respondent, Joseph Lilly, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that her child is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “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 enrolled A.L. in respondent’s schools using an in-district address in September 2010.  Subsequently, in March 2012, petitioner’s child was determined to be eligible for assistance under McKinney-Vento and continued to attend respondent’s schools.

The record further indicates that during the 2013-2014 school year, A.L. was under the supervision of the Suffolk County Probation Department (“Probation Department”).  James Petti, who is employed by respondent as the District Attendance Teacher and Manager of the Office of Central Registration, and also serves as respondent’s homeless liaison, conducts routine meetings with district students who are under the supervision of Probation Department and their assigned probation officers.  On December 12, 2013, Mr. Petti held such a meeting with A.L. and Probation Officer Terry Felice.  During this meeting, Officer Felice reported visiting A.L. at an out-of-district address on multiple occasions, which was also the only known address on file for petitioner and A.L.  At this meeting, A.L. stated that they resided at the out-of-district address and indicated that the living situation was not problematic.

Upon receiving this information, respondent initiated a residency investigation and held a residency and homeless meeting with petitioner and a representative from the New York State Technical and Educational Assistance Center for Homeless Students (TEACHS) via teleconference on December 18, 2013.  The record reflects that during this meeting, petitioner admitted that she and A.L. have resided at the out-of-district address, for which she pays rent, since September 11, 2013.  The record further reflects that based on this information, respondent concluded that the out-of-district residence is a fixed, regular and adequate nighttime location.  During the teleconference, respondent informed petitioner that A.L. would be permitted to attend district schools for the remainder of the 2013-2014 school year.  On May 27, 2014, respondent mailed a letter to petitioner and hand delivered a copy to A.L. indicating that, following the conclusion of the 2013-2004 school year, A.L. would be excluded from respondent’s schools as A.L. is neither a district resident nor homeless within the meaning of McKinney-Vento.[1]  This appeal ensued and petitioner’s request for interim relief was denied on July 10, 2014.

Petitioner claims that she and A.L. are homeless within the meaning of McKinney-Vento because they lack a fixed, regular and adequate nighttime residence and are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.  Specifically, petitioner asserts that she and A.L. reside between an in-district residence with her stepmother and an out-of-district address with another family member.

Respondent maintains that petitioner has failed to state a claim for which relief can be granted because A.L. resides full-time at an out-of-district address, for which petitioner pays rent, and is therefore not homeless within the meaning of McKinney-Vento.  Respondent affirmatively asserts that petitioner and A.L. are neither homeless, nor district residents, as they have resided in the out-of district address since September 11, 2013 which is a fixed, regular and adequate nighttime residence.  Respondent further asserts that the petition is untimely and that the decision to exclude A.L. was not arbitrary and capricious as it was based on credible evidence, complied with the law and was properly within the discretion of the district.

I must first address a procedural matter.  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).  Respondent maintains that the petition is untimely because petitioner commenced the appeal on June 27, 2014.  The record indicates that the residency determination letter was hand delivered to A.L. on May 27, 2014 and mailed to petitioner on the same day.

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).  I cannot find that hand delivery of the letter to the student, A.L., is sufficient to show petitioner’s receipt.  Although the record does not indicate when petitioner received the May 27, 2014 letter, affording the usual five days for mailing, the date of receipt would be June 2, 2014.  Therefore, because petitioner commenced her appeal within 30 days of June 2, 2014, the appeal is timely. 

However, the appeal must 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 night-time residence, including a child or youth who is:

(i)sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii)living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii)abandoned in hospitals;

(iv)awaiting foster care placement;

or

(v)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:

 

(i)a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or

(ii)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 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).

Petitioner’s child does not fit the definition of a homeless child under either State or federal law.  Petitioner alleges that she and A.L. are homeless because they lack a fixed, regular and adequate nighttime residence and are sharing the housing of other persons due to the loss of housing, economic hardship or a similar reason.  However, there is no evidence on the record to support that claim, other than petitioner’s conclusory assertion that she is sharing housing with other family members.  The record reflects that petitioner is currently living in a home outside respondent’s district and has been since September 11, 2013.  In fact, the record reflects that petitioner admitted to respondent’s attendance teacher and homeless liaison that she and A.L. reside at the out-of-district address.  Petitioner has presented no evidence that the out-of-district address is not adequate.

While previous circumstances may have made petitioner’s child eligible for services as a homeless child under McKinney-Vento, this petition is devoid of any evidence that petitioner’s child currently lacks a fixed, regular and adequate night time residence and is homeless (see Appeal of Z.P. and D.P., 54 Ed Dept Rep, Decision No. 16,639; Appeal of T.C., 53 id., 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).   Accordingly, based on the record before me, I am constrained to find that petitioner has not met her burden, and that respondent’s determination that petitioner’s child is not homeless was 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 her child’s behalf at any time, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE