Appeal of L.S., on behalf of her son J.L., from action of the Board of Education of the Elmont Union Free School District regarding residency and transportation.

Decision No. 17,351

(March 15, 2018)

Colum P. Nugent, Esq., attorney for respondent

ELIA, Commisioner.--Petitioner appeals the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that her son, J.L., is not homeless within the meaning of the McKinney-Vento Homeless Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to continue to attend the district’s schools or receive transportation thereto.  The appeal must be dismissed.

The record indicates that, during the 2013-2014 school year, J.L. attended elementary school within respondent’s district.  Petitioner asserts that, in March 2013, she became homeless when she was evicted from her residence in Elmont, New York (“first Elmont address”), within respondent’s district.   J.L. attended elementary school in respondent’s district until the end of the 2013-2014 school year, when he was ultimately excluded following a residency investigation which revealed that he was not living within the district, but rather, at a residence within the Hempstead Union Free School District (“Hempstead address”). 

The record also indicates that, during the 2014-2015 school year, J.L. was enrolled in the Valley Stream Union Free School District (“Valley Stream”).[1]  On or about August 31, 2015, petitioner made a request for enrollment in respondent’s schools on behalf of J.L., listing the Hempstead address as their current address and Valley Stream as the school district where J.L. was last enrolled.  The request also listed J.L.’s sibling, D.K., as attending the Sewanhaka High School District (“Sewanhaka”). 

According to respondent, it subsequently commenced an investigation and determined that petitioner was neither homeless nor a resident of Elmont, and respondent’s superintendent informed petitioner of such determination.

By letter dated October 5, 2015, petitioner appealed this determination and an administrative review was held on December 23, 2015, January 12, February 22, and April 7, 2016.  At the review, petitioner testified that she lives with her three children, including J.L., but does not have a permanent residence and stays at both the Hempstead address and another address in Elmont (“second Elmont address”).  She testified that she was unemployed but had hired a realtor to help her find an apartment in Elmont. 

Respondent produced testimony from an investigator who conducted surveillance during the 2013-2014 school year, on behalf of respondent’s district.  The investigator testified that his investigation, which included surveillance on the Hempstead address, revealed that petitioner and her children resided at the Hempstead address.  As a result, petitioner was notified that both of her children enrolled in respondent’s district were excluded from Elmont in March 2014, but were allowed to complete the school year in Elmont.

Petitioner testified that her children subsequently attended Valley Stream for the 2014-2015 school year based on her claim that they were staying with a friend in Valley Stream.  However, according to respondent, petitioner’s children were ultimately excluded from Valley Stream, effective June 2015.

With regard to the 2015-2016 school year, which is the school year at issue, respondent’s investigator testified that he was hired by respondent following petitioner’s request for enrollment in respondent’s district in September 2015.  He conducted surveillance on the Hempstead address on fourteen weekday mornings – September 16, 17, 18, 22, 24, and 25, 2015, and January 11 and 12, February 10, 11, 12, and 22, and April 6 and 7, 2016 – and consistently observed petitioner exit the Hempstead address and enter her vehicle, twelve of those mornings with J.L., and confirmed that J.L. was in school those days, with the exception of January 11, 2016, when J.L. was marked as calling in sick.  A teaching assistant in respondent’s district who assists with registration also conducted surveillance on the first Elmont address on three mornings in October 2015 (October 20, 22, and 23, 2015) and at an address suspected to be the second Elmont address[2] on three mornings in early 2016 (January 29, and February 3 and 4, 2016), and did not observe petitioner or J.L at either address on any of the six occasions, although he confirmed that J.L. was in school on each of those days. 

On or about May 16, 2016, the hearing officer’s decision was mailed to petitioner and sent home in J.L.’s backpack.  In his decision, the hearing officer found that McKinney-Vento is inapplicable in this matter and that J.L. is not a resident of respondent’s district.  Specifically, he found as follows:

[A]lthough [petitioner] is vague and inconsistent regarding the Hempstead address, there is substantial and compelling evidence that [the Hempstead address] is, in fact, her permanent residence.  On every one of [the investigator’s] nineteen observations of the premises, [petitioner] was observed leaving the home, almost always with the child.  Further, she admits that she has cable and her cell phone listed at that address.  In my mind, these are overwhelming signs that she resides there.

By letter dated June 30, 2016, respondent’s counsel notified petitioner of respondent’s determination that J.L. would be excluded from respondent’s schools effective July 5, 2016.  The basis for the determination was that (1) “[y]ou and your child are not residents of the Elmont Union Free School District”; and (2) “[y]ou and your child are not homeless but, in fact, you reside at [the Hempstead address].”  The letter further advised that petitioner had 30 days to appeal the decision to the Commissioner of Education and contained appeal forms.  This appeal ensued. Petitioner’s request for interim relief was denied on August 26, 2016.

Petitioner contends that she and J.L. are homeless within the meaning of McKinney-Vento because they share the housing of another person due to economic hardship or a similar reason.

Respondent asserts that the appeal must be dismissed pursuant to the doctrine of res judicata.  It further argues that petitioner and J.L. are not homeless within the meaning of McKinney-Vento, and maintains that its determination is rational and supported by the record.

I must first address a procedural issue.  On July 19, 2016, I issued a decision dismissing petitioner’s  residency appeal regarding J.L.’s older sibling, D.K. (see Appeal of L.S., 56 Ed Dept Rep, Decision No. 16,929).  Respondent asserts that the instant appeal involves the same set of facts and therefore must be dismissed pursuant to the doctrine of res judicata.  Respondent relies on Appeal of Mitzner, 32 Ed Dept Rep 533, Decision No. 12,906, and the cases it cites, to support its position (see also Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 87, Decision No. 12,579; Appeal of Tobin, 30 id. 315, Decision No. 12,477; Appeal of Roth, 26 id. 165, Decision No. 11,715; Matter of Monaco, 24 id. 348, Decision No. 11,421; Matter of Gerber, 13 id. 19, Decision No. 8,687).  Appeal of L.S. and the instant appeal involve the same family and a determination of residency based on petitioner L.S.’s residency as the parent of D.K.  However, while Appeal of L.S. involved an investigation by Sewanhaka concerning D.K.’s living situation, which went through the administrative review process within Sewanhaka, the instant appeal involves an investigation by respondent’s district of J.L.’s residency, which went through the administrative review process within respondent’s district.  Although the facts in both appeals are similar, they are not the same.  Further, the cases cited by respondent are inapplicable because they each involved a determination made by the same school district and identical claims based on the same set of facts.  Therefore, I decline to dismiss the appeal pursuant to the doctrine of res judicata.

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:

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[3]; 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
3. 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’s son does not fit the definition of “homeless child” under State or federal law.  Petitioner asserts that she has been homeless since she was evicted from the first Elmont address in March 2013.  According to the petition, petitioner claims that she is temporarily residing at both the Hempstead address and the second Elmont address, which she appears to claim are inadequate. 

In her petition, to describe J.L.’s living situation, she references certain attached documents “1, 2, 3, [and] 5.”  “Document 1” is a letter from petitioner’s realtor indicating that she is “trying to find [petitioner] an apartment in Elmont.”  “Document 2” and “Document 3” are unsworn letters from “Jane Smith” and “Irma Holland,” indicating that petitioner stays with them in Hempstead and Elmont, respectively.  According to the letter from Jane Smith, petitioner and her children “reside with me from time too [sic] time, but at this point there is no space for them.”  According to the letter from Irma Holland, petitioner and her children “stays [sic] with me from time to time at my residen[ce] in Elmont.  They are unable to have permanent residen[ce], because this is not enough living space.”  “Document 5” is a letter from petitioner indicating that she and her children are homeless because they are unable “to find permanent residency.”  She states that, at the second Elmont address, she and her children “sleep in the livingroom the 3 boys ages 13, 9 & 5 sleeps on a pull out couch or aero bed and [I] sleep in the couch.”  She further states that, at the Hempstead address, “my 3 boys and I stay in a room there where them & I are a little bit more comfortable because we are not in a livingroom....”  She explains, “we stay from one house to another in between those 2 addresses because there’s not enough space at either 2 address for us to stay permanently.”  However, other than petitioner’s conclusory assertions that her family lacks sufficient space, there is no evidence in the record that either residence is inadequate (see Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812; Appeal of S.T., 53 id., Decision No. 16,619; Appeal of T.B., 48 id. 4, Decision No. 15,774).

Moreover, I take administrative notice of petitioner’s prior testimony in the administrative review held by Sewanhaka in Appeal of L.S., 56 Ed Dept Rep, Decision No. 16,929, which is inconsistent with her testimony in the present case.  In Appeal of L.S., petitioner testified in her administrative review hearing that the Hempstead address is a two-family home with three bedrooms upstairs and three bedrooms downstairs, and that Jane Smith lives there with her two children.[4]  However, in the administrative review held by respondent, petitioner testified that Jane Smith lives with her three-year-old grandchild.  Petitioner did not submit a reply or any evidence to rebut or explain this inconsistency or to explain how the living arrangement is inadequate.

Additionally, petitioner has not established that her living arrangement is temporary or transitional.  Contrary to petitioner’s allegations in the petition that she is residing at the Elmont and Hempstead addresses, the record in the instant appeal, together with the record from Appeal of L.S., indicates that J.L. has resided with petitioner at the Hempstead address since at least the 2013-2014 school year when Elmont first commenced a residency investigation which included surveillance on the Hempstead address. During respondent’s surveillance of the same address during the 2015-2016 school year, petitioner was overwhelmingly observed exiting the Hempstead address in the morning with her children.  Although petitioner submits an unsworn letter from a realtor indicating that petitioner is looking for an apartment in Elmont, petitioner has provided no evidence to sufficiently rebut or explain the evidence produced by respondent, including respondent’s surveillance evidence.  To the extent that petitioner is looking for housing in the district, this does not establish that her current residence is temporary or transitional and petitioner has produced no evidence indicating that she needs to vacate her current residence or that there is a time limit as to how long she and J.L. can reside there  (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104). 

Accordingly, based on the record before me, I cannot conclude that respondent’s determination that petitioner’s son is not homeless is arbitrary, capricious, or unreasonable.

In light of this disposition, I need not consider the parties’ remaining contentions.

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, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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