Appeal of S.R., on behalf of her children K.T. and D.T., from action of the Board of Education of the Freeport Union Free School District regarding residency and transportation.

Decision No. 17,663

(June 28, 2019)

Ingerman Smith, L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District (“respondent”) that her children, K.T. and D.T. (“the students”), are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.   The appeal must be dismissed.

The record indicates that the students’ father registered K.T. in respondent’s district in 2006, at which time he represented that K.T. resided with him in a residence owned by his mother.  The registration form submitted for K.T. appears to indicate that two of the father’s other children (who are not the subjects of this appeal) were already attending school in respondent’s district in 2006.  In February 2012, the students’ father submitted a change of address form indicating that K.T. and two of his other children resided with him at a different in-district address.

In August 2013, petitioner submitted a change of address form for K.T. and another child (who is not the subject of this appeal) to another address within the district.  At that time, petitioner indicated that K.T. and D.T. (i.e., the two students who are the subjects of this appeal) resided with her.

In or about September 2013, petitioner enrolled D.T. in respondent’s district.  On or about April 7, 2014, petitioner changed the students’ address to another address within respondent’s district (the “first in-district address”).

In late 2016, mail sent to the first in-district address by the district was returned with the notations “return to sender,” “not deliverable as addressed,” and “unable to forward.”

In a letter to petitioner dated December 20, 2016, the district’s central registry verification office indicated that petitioner had a new address and requested proof that she resided within the district.  The letter indicated that, if the district did not receive acceptable proof of residency by January 5, 2017, the students would be excluded from respondent’s schools.  Petitioner did not respond to this letter.

On or about January 10, 2017, mail sent by the district to the first in-district address was again returned bearing the same notations as the letters returned in late 2016.

In a letter dated January 10, 2017, the Central Registry Verification Office again requested residency information from petitioner, providing her until January 20, 2017 to provide the information.  Petitioner did not respond to this letter.

Later in January 2017, respondent learned from the U.S. Postal Service that petitioner had directed her mail to be forwarded to a second address located within respondent’s district (the “second in-district address”).

On or about March 10, 2017, respondent conducted an “investigative report” on petitioner and the students’ father, which indicated that petitioner’s name was associated with the second in-district address and the students’ father’s name was associated with an address in Roosevelt, New York (the “out-of-district address”).

In March 2017, respondent conducted early-morning surveillance of the second in-district address twice and the out-of-district address four times.  Petitioner and the students were not observed at the second in-district address but were observed leaving the out-of-district address on three of the four dates of surveillance.  The investigator also observed petitioner’s vehicle parked at the out-of-district address on two of the four surveillance days.

In a letter dated April 21, 2017, respondent’s director of grants, funded programs, and student achievement (“director”) informed petitioner of the district’s determination that the students did not reside within respondent’s district.  The director indicated that the students would be excluded from respondent’s schools as of April 28, 2017.  Petitioner did not submit any information to the district or contact the director by this deadline.

On or about May 9, 2017, petitioner and the students’ father met with the director and the district’s supervisor of central registration (“supervisor”).  At this meeting, petitioner stated that the students resided at the second in-district address.  When asked why the students were observed at the out-of-district address, petitioner indicated that the students spend Tuesday and Friday mornings with their father at the out-of-district address.  Based on these representations, the district permitted the students to attend its schools.  Petitioner and the students’ father were given affidavits to complete and were told to provide certain documentation substantiating the students’ address.

After the May 9, 2017 meeting, petitioner failed to submit the affidavits or requested information.  Thereafter, respondent conducted additional surveillance of the second in-district address and the out-of-district address.  An investigator did not observe petitioner or the students at the second in-district address on the three occasions that address was observed, even though the days of the week (i.e., Monday, Wednesday, and Thursday) were days on which petitioner indicated the students would be present at the second in-district address.  The investigator did, however, observe the students exiting the out-of-district address on two of the three days of surveillance.

In a letter dated July 26, 2017, the director indicated that the district continued to have reason to believe that the students did not reside within respondent’s district.  The director indicated that the students would be excluded from respondent’s schools as of August 1, 2017.

On or about September 18, 2017, petitioner again met with the director and the supervisor.  Petitioner submitted the proof of residency which respondent had requested at the May 9, 2017 meeting.

Also on September 18, 2017, a district community worker (“community worker”) visited the second in-district address at 4:00 p.m. but no one answered the door.

On or about September 26, 2017, the community worker again visited the second in-district address.  The students’ grandfather answered the door, stating that petitioner was not home, that she “is always working” and that petitioner would contact the district.  Petitioner did not contact the district following this interaction.

Respondent proceeded to conduct an additional four days of surveillance at both the second in-district address and the out-of-district address.  Petitioner and the students were not seen at the second in-district address on any of the four days.  The students were observed at the out-of-district address on three of the four days.

In a letter dated January 26, 2018, the director indicated that the district continued to have reason to believe that the students did not reside within respondent’s district.  The director indicated that the students would be excluded from respondent’s schools as of February 5, 2018.  Petitioner did not contact the district in response to this letter nor did she appeal this determination.

On or about April 10, 2018, petitioner came to the district’s central registry verification office accompanied by a Child Protective Services caseworker.  The caseworker stated that petitioner had been evicted from the first in-district address on November 11, 2016.  The caseworker further indicated that the students lived with their paternal grandmother at the out-of-district address and that petitioner and the students’ father “sometimes” stayed at the out-of-district address.  Petitioner stated that the students’ grandfather evicted her from the second in-district address upon learning that the district had conducted a residency investigation.  Based on petitioner’s representations, respondent enrolled the students as homeless students.  In connection with such registration, petitioner completed “designation of school district of attendance for a homeless child” forms for the students.  In these forms, petitioner indicated that the students had been last permanently housed at the first in-district address.  Petitioner also identified her current address as the second in-district address.

In a letter dated April 11, 2018, the director informed petitioner that the district had determined that the students were not homeless.  Petitioner attempted to appeal this decision pursuant to Education Law §310. In a letter dated May 8, 2018, my Office of Counsel returned the petition because it lacked an affidavit of service.

On August 31, 2018, petitioner met with the district’s homeless liaison.  In an affidavit submitted with this appeal, the homeless liaison indicates that petitioner offered evasive responses as to the nature and location of the students’ residence, noting that it was “unclear from [the] discussion [] which residence she and the children share[d],” and that, when asked about the students’ living arrangements, petitioner indicated that she was “in a single bedroom” and that she and the students “share” the residence.  The homeless liaison further asserts in the affidavit that when asked about the results of the district’s surveillance of the second in-district address, petitioner responded that “the kids need to go and visit other people,” and that petitioner stated that she had “the right to be wherever [she] needs to be.”

In a letter dated August 31, 2018, respondent reiterated its earlier determination that the students were not homeless.  This appeal ensued.

Petitioner contends that she and the students were evicted from the first in-district address in November 2016 and that she and the students “are sharing a spare bedroom” at the out-of-district address.  Petitioner seeks a determination that the students lack a fixed, regular and adequate nighttime residence at the out-of-district address.

Respondent contends that petitioner has failed to meet her burden of proving that the students lack a fixed, regular and adequate nighttime residence.

Education Law §3209(1)(a) defines “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; or
4. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
5. an unaccompanied youth ...; 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]

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 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).

Initially, while there is some ambiguity[2] in the record concerning petitioner and the students’ living arrangements, petitioner did not appeal respondent’s January 26, 2018 determination that the students do not reside within its district.  Therefore, that decision has become final and binding on petitioner for purposes of this appeal (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165; Appeal of Laventure-Louis and Louis, 56 id., Decision No. 17,027).

On this record, petitioner has failed to establish that the out-of-district address is inadequate.  Petitioner indicates in the petition that she “is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  Petitioner further asserts that she and the students are “sharing a spare bedroom” at the out-of-district address, and the student’s grandmother asserts that “rooms are limited” within the home.  However, petitioner has produced no proof to support these assertions. Petitioner has also failed to describe the nature of the residence, including its size and number of bedrooms.  While the students’ grandmother asserts that petitioner and the students are “sharing a spare bedroom,” petitioner has failed to provide any more detail about the children’s sleeping arrangements, including, for example, the number of beds in that room.  Moreover, petitioner has not provided evidence that her use of the spare bedroom is compelled by the characteristics of the house or its number of inhabitants (Appeal of D.T., 58 Ed Dept Rep, Decision No. 17,558; Appeal of C.M., 57 id., Decision No. 17,131).  Without any specific information about the adequacy of petitioner and the students’ living arrangements, I cannot find that the out-of-district address is inadequate (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165).

Moreover, petitioner has not established that the out-of-district address is temporary or transitional.  There is no evidence, other than the grandmother’s statement that the students are “temporarily” staying at the out-of-district address, that petitioner or the students need to vacate the residence or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id. Decision 16,404; Appeals of L.B., 50 id. Decision No. 16,129).

Based on the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a) and §100.2(x) of the Commissioner’s regulations.  Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed, petitioner retains the right to reapply for admission on behalf of the students at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.  I have considered petitioner’s remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE