Appeal of H.H., on behalf of his children, from action of the Board of Education of the Connetquot Central School District regarding residency and transportation.

Decision No. 17,141

(August 9, 2017)

Guercio & Guercio LLP, attorneys for respondent, Kelly A. Reape, Esq., of counsel

ELIA, Commissioner.—Petitioner challenges the determination of the Board of Education of the Connetquot Central School District (“respondent”) that his children (the “students”) are not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The students were initially enrolled in respondent’s district in February 2014.  In connection with this registration, petitioner indicated that he, his wife and the students resided at an address located within the district (the “in-district address”).  In September 2016, the district received information from an anonymous source that petitioner and his family had not resided within the district’s geographical boundaries since July 2016. 

On November 2, 2016, respondent’s director of pupil personnel services (“director”) and the district’s homeless liaison met with petitioner to discuss his residency.  At this meeting, petitioner indicated that, in July 2016, he had moved to an address in Central Islip, New York, which is located outside of respondent’s geographical boundaries (the “Central Islip address”).  Petitioner further asserted that his company owned this property and that he intended to make improvements to the property and sell it.

In a letter dated November 7, 2016, the director informed petitioner of her determination that the students were not residents of respondent’s district.  The director based this determination on petitioner’s admission that he and the students did not reside within the district.  The director indicated that the students would be excluded from respondent’s school after November 23, 2016, with the exception of one of petitioner’s children, a high school senior, who would be allowed to complete the remainder of the 2016-2017 year.  The director further informed petitioner that he could appeal the decision pursuant to Education Law §310 and provided, as respondent admits on appeal, the incorrect telephone number for my Office of Counsel.

In a letter dated December 12, 2016 addressed to respondent, the district’s superintendent and the director, petitioner recounted the above events and contended, for the first time, that he was homeless within the meaning of McKinney-Vento.  Petitioner further stated that he had attempted to appeal the district’s residency decision, but was unable to do so because respondent provided an incorrect telephone number for my Office of Counsel.  The district’s homeless liaison subsequently contacted petitioner and scheduled a meeting for December 19, 2016.

On December 19, 2016, petitioner met with the homeless liaison and completed a “STAC-202” homeless designation form.[1]  In this form, petitioner designated respondent’s district as the students’ school district of attendance.

In a letter dated December 19, 2016, the director informed petitioner of her determination that the students were not homeless within the meaning of McKinney-Vento.  The director explained that the students were not homeless because, by petitioner’s own admission, he and the students had continuously resided at the Central Islip address, which petitioner owned, since July 2016.  Although the record is far from clear, petitioner asserts in a statement attached to the petition that his children were allowed back to school on December 20, 2016.  This appeal ensued.[2]

Petitioner alleges that he and the students are homeless as defined by McKinney-Vento because the Central Islip address is a “temporary residence.”  Petitioner further alleges that he is undergoing economic hardship and submits documents reflecting such hardship. 

Respondent contends that petitioner has failed to demonstrate that he and the students are homeless within the meaning of McKinney-Vento.  Respondent additionally argues that, to the extent petitioner seeks to appeal the district’s residency decision, such appeal is untimely.

I must first address several procedural matters.  Petitioner has submitted an extensive reply in this matter, including numerous exhibits.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

In response to the newly raised allegations in petitioner’s reply, respondent seeks permission, pursuant to 8 NYCRR §275.3, to submit a supplemental affidavit from its director.  However, because I have not accepted those portions of petitioner’s reply which attempt to raise assertions that should have been in the petition, it is unnecessary to consider respondent’s affidavit and, therefore, it has not been accepted.

Additionally, following service of his reply, petitioner submitted a document captioned “My Statement” which purports to respond to the additional affidavit from the director, as well as to respondent’s memorandum of law.  Because I have not considered the additional affidavit, I need not consider petitioner’s response thereto.[3]  Moreover, reply memoranda may be submitted only with prior approval (8 NYCRR §276.4).  Petitioner did not seek permission to submit a reply memorandum.  Consequently, I will not consider petitioner’s statement in response to the district’s memoranda of law.

With respect to respondent’s contention that the appeal is, in part, untimely, 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). 

This appeal was commenced by service of the petition on January 17, 2017.  Respondent’s initial determination that petitioner’s children were not district residents was set forth in its November 7, 2016 letter.  Affording the usual five days for mailing since the record does not indicate the actual date of receipt (see e.g. Appeal of S.G.K., 56 Ed Dept Rep, Decision No. 17,043), the time from which to bring an appeal began on November 12, 2016.  Thus, an appeal from respondent’s residency determination was required to be commenced by December 12, 2016.  In his reply, petitioner asserts that the delay should be excused because the November 7, 2016 letter contains the wrong telephone number for my Office of Counsel and respondent did not provide assistance in bringing the appeal, as required by McKinney-Vento.  However, the record indicates that petitioner did not assert that he and his children were homeless under McKinney-Vento until his December 12, 2016 letter to the district.  As of November 7, 2016, respondent had no obligation to assist petitioner in bringing an appeal from a residency determination which did not include allegations of homelessness.  Further, I find that respondent’s incorrect recitation of the telephone number is not a sufficient excuse for the delay, since petitioner could obtain information on commencing an appeal from other sources, including the State Education Department’s website.  Therefore, to the extent that petitioner challenges respondent’s residency determination (as opposed to its determination that he and his son are not homeless), the appeal must be dismissed as untimely.

Turning to the merits, at all times relevant to this appeal, Education Law §3209(1)(a) defined “homeless child” as:

(1)a child or youth who lacks a fixed, regular, and adequate nighttime 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;[4] 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….

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 has failed to meet his burden of proof and has not established that the students are homeless under State or federal law.  Petitioner admits that he voluntarily left the in-district residence, which is owned by his brother-in-law, due to various grievances with his brother-in-law and his family.  Specifically, petitioner asserts that the students were not allowed “to move freely in the house or eat what they like because certain food smell[s] ... bother[ed] the owner,” and that “business disputes” existed between him and his brother-in-law.  Based on these concerns, petitioner asserts that he and the students “evicted our selves [sic].”  On this record, petitioner has not established that he and the students were forced to leave the in-district residence due to a loss of housing or similar reason, rather than a personal preference (Appeal of a Student with a Disability, 44 Ed Dept Rep 94, Decision No. 15,108).

Further, there is no evidence in the record to suggest that petitioner and the students are sharing the housing of other persons, or that the Central Islip address is the type of temporary shelter or other accommodation described in Education Law §3209 (Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537).  Petitioner alleges that he, his wife, and the students reside at the Central Islip address, and that he, through a corporate entity, owns this property.  In his petition, petitioner does not allege that the Central Islip address is inadequate.  Therefore, petitioner has not met his burden of proof to demonstrate that the Central Islip address is not fixed, regular and adequate (see Appeal of D.W., 56 Ed Dept Rep, Decision No. 16,924).

Moreover, the record does not support a finding that the Central Islip address is not fixed or regular.  Petitioner asserts that the Central Islip address is a “temporary residence” because he is in the “Short Sale process” and he has not made mortgage payments on the property since February 1, 2014.  As proof, petitioner submits documents regarding the Central Islip address, including a loss mitigation application, mortgage statements with related documents reflecting delinquency, and unpaid utility and tax bills.[5]

While these documents reflect substantial debt and delinquency during portions of 2016-2017, they do not demonstrate that the Central Islip address is temporary or transitional.  I have previously held that, for purposes of determining homelessness under the McKinney-Vento and Education Law §3209, the mere threat of foreclosure proceedings is insufficient to demonstrate that a residence is temporary or transitional (Appeal of R.D., 56 Ed Dept Rep, Decision No. 16,945; Appeal of S.D., 53 id., Decision No. 16,608).  Moreover, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).  Therefore, the mere fact that petitioner submitted a loss mitigation application in order to obtain approval for a short-sale of the property does not demonstrate that petitioner is in danger of imminently losing his housing or that there is a fixed time limit as to how long he and the students may remain (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608; Appeal of A.W., 53 id., Decision No. 16,559).  Therefore, on this record I cannot conclude that respondent’s determination that petitioner’s children are not homeless is arbitrary, capricious or unreasonable.

Although the petition does not include a request for relief in this regard, I admonish respondent that once petitioner asserted that his children were homeless, it was obligated to immediately enroll the students pending final resolution of any appeals (42 USC 11432[g][3][E]; Education Law §3209[5][c]).  Petitioner is correct that respondent violated McKinney-Vento by failing to admit petitioner’s children until the day after its determination on homelessness pursuant to 8 NYCRR §100.2(x).  Respondent must ensure that it fully complies with the requirements of McKinney-Vento in all cases.

 As a final matter, to the extent that petitioner contends that respondent's homelessness determination was based on unlawful discrimination, the record is devoid of any support for petitioner's contention and, as discussed above, respondent's homelessness determination is supported by the record.

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

THE APPEAL IS DISMISSED.

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