Appeal of K.G.B., on behalf of her child, B.B.M., from action of the Board of Education of the Victor Central School District regarding residency and transportation.

Decision No. 17,666

(July 1, 2019)*

Ferrara Fiorenza, PC, attorneys for respondent, Lindsay A.G. Plantholt and Joseph G. Shields, Esqs., of counsel

ELIA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Victor Central School District (“respondent”) that her child (“B.B.M.” or “the student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools tuition-free or receive transportation.  The appeal must be dismissed.

The record indicates that, from September 2007 until sometime in April 2015, B.B.M. was enrolled as a resident student in respondent’s district.  On or about April 9, 2015, respondent learned that petitioner and the student had been evicted from their residence within the district (the “in-district residence”) and had moved in with petitioner’s mother at a residence located outside of respondent’s district (the “out-of-district residence”).  Respondent permitted the student to complete the 2014-2015 school year in the district.

In a July 29, 2015 email to respondent’s homeless liaison, petitioner stated that, “[i]n April of 2015 [she and her two children] were forced to move in with [her] mother [at the out-of-district residence] due to [her] health and financial circumstances.”  In a July 31, 2015 email, the homeless liaison informed petitioner that the district would “continue to consider your children to meet the criteria for homelessness at this time”; thus, the student was permitted to attend school in the district during the 2015-2016 school year.

In May 2016 and again in August 2017, the homeless liaison spoke with petitioner as part of the district’s “homeless re-verification process” and determined that the student continued to meet the McKinney-Vento criteria.  Accordingly, the student attended school in the district during the 2016-2017 and 2017-2018 school years.

In June 2018, petitioner completed an “Enrollment Form – Residency Questionnaire” as part of the district’s homeless re-verification process.  On the form, petitioner asserted that she and the student continued to live with petitioner’s mother at the out-of-district residence as a result of economic hardship.  By letter dated July 2, 2018, the homeless liaison notified petitioner that, “[i]t is our belief that [the student] no longer qualifies as homeless ...” and was, therefore, no longer entitled to attend respondent’s schools.

On July 13, 2018, petitioner met with the homeless liaison to present information concerning the student’s right to attend the district’s schools.  In an affidavit submitted in connection with this appeal, the homeless liaison avers that, “[b]ased on the information provided by Petitioner, it appeared to me that the [out-of-district residence] was a fixed, regular and adequate nighttime residence for both her and [the student], and that [the student] therefore did not qualify as a homeless student ....”

By letter dated July 17, 2018, respondent’s superintendent informed petitioner that the student was neither a district resident nor homeless and, therefore, would be excluded from respondent’s schools effective August 17, 2018.  This appeal ensued.

Petitioner contends that the student is homeless and, therefore, should be allowed to continue to attend school in the district.  Petitioner asserts that she and the student are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”

Respondent argues that petitioner has failed to meet her burden of establishing that the student is homeless.

I must first address two procedural matters.  The homeless liaison submitted to my Office of Counsel an email from petitioner dated August 17, 2018 in which she seeks to clarify that she is not seeking transportation to extracurricular activities as stated in the petition and to correct some minor typographical errors in the petition.  Petitioner did not properly serve such document upon respondent in accordance with Commissioner’s regulation §275.8(b) and it is not necessary to a determination of this appeal.  Therefore, I decline to exercise my discretion to accept such email as an additional supporting paper pursuant to 8 NYCRR §276.5(a).

In addition, petitioner has submitted a reply in this matter, together with a document captioned “Affidavit in Opposition to Answer” (“affidavit in opposition”), which includes 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  The affidavit in opposition annexed to the reply attempts to buttress allegations in the petition and presents new facts and exhibits, particularly with regard to the adequacy of the out-of-district residence, that are not responsive to any new material submitted by respondent.  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.

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 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]

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 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).

On the record before me, petitioner has not established that the student meets the definition of a homeless child under State or federal law.  Petitioner asserts that she and the student lack “a fixed, regular, and adequate nighttime residence” and are living with her mother at a residence outside the district “due to loss of housing, economic hardship or a similar reason.”  Specifically, petitioner avers that:

[The student] shares a 2-story home with grandmother, mother, two siblings, 7 cats.  His bedroom is in the finished attic, which he must share with his 22-year-old brother ....  The bed is meant for a child, not a teen.  His sleep is disrupted every night by his [sibling’s] schedule, and by the cat who must live in the attic due to the cat’s medication needs ....  Most of [the student’s] and the entire family’s belongings are in boxes in the basement.  Clothing storage is inadequate and [the student] typically leaves his clothes in laundry baskets.  There is no private place for [the student] to do his homework, so he does it in his bed ....  The description of the house as a 4 bedroom, 2.5 bath is not accurate in the way the home is used.  There are three proper bedrooms.  One of the former bedrooms was transformed into an office and cannot be turned back into a bedroom due to the need for office space ....  The full bathroom on the second floor has the only usable shower ....

In an affidavit, the homeless liaison avers that, at their meeting on July 13, 2018, “[petitioner] stated that [the student] and an older sibling share a bedroom in the ‘attic’ of the house, but only when the older sibling is home from college.”  The homeless liaison further avers that petitioner indicated to her that, “[e]veryone in the house has their own bed to sleep in each night.”  Attached as an exhibit to the affidavit is a description of the out-of-district residence that appeared on Zillow (an online real estate database) indicating that the property is a two-story, single family home, 1,760 square feet in size, with four bedrooms and two and a half bathrooms.

Petitioner contends that while the house nominally has four bedrooms, there are only “three proper bedrooms” because one of the bedrooms has been converted into an office.  She further alleges that she sleeps on a small mat in the converted bedroom/office.  In an affidavit, the homeless liaison attests that petitioner told her in a meeting on July 13, 2018 that she sleeps in a finished basement and that everyone in the house sleeps in his or her own bed.  In response, petitioner asserts in the affidavit in opposition that she sleeps on a foam pad in the converted office/bedroom on the second floor and the basement is “uninhabitable for sleep” because it houses seven cats, with their litter boxes, who are confined to the basement.

On this record, petitioner has not demonstrated that the out-of-district residence is inadequate.  For example, petitioner has not shown why the fourth bedroom must be used only as an office and cannot also be used as a bedroom. Further, I cannot find that petitioner’s allegation that she sleeps on a foam mattress on the floor renders the current housing inadequate.  Petitioner alleges that she, the student and his two siblings are sharing housing with the student’s grandmother.  The record establishes that the student and his older brother sleep in a room in a finished attic and each has his own bed.  Both the grandmother and the student’s other brother have their own bedrooms.  Petitioner asserts that the full bathroom on the second floor has the only usable shower, because a shower on the main floor is being used for storage.  She also argues that the family’s belongings are in boxes in the basement and clothing storage is inadequate, and that the student has “no private place” to do schoolwork and therefore does it in his bed.  However, as noted, the record indicates that the residence is a four-bedroom house, one of which is a converted bedroom/office, with two and one-half bathrooms and approximately 1,760 square feet of living space.  Therefore, petitioner has not provided sufficient evidence to support a claim that the out-of-district residence is overcrowded or otherwise inadequate (see Appeal of S.P., 57 Ed Dept Rep, Decision No. 17,125; Appeal of V.C.B., 56 id., Decision No. 17,038; Appeal of K.B., 56 id. Decision No. 16,937: Appeal of D.W., 55 id., Decision No. 16,812).

Petitioner also contends that certain specific conditions render the housing inadequate.  Petitioner alleges that the student’s bed is undersized, that the student must do schoolwork in his bed, and that her son’s sleep is disrupted by a cat that must live in the attic because of its medical needs.  Petitioner did not submit evidence with the petition to corroborate such allegations.  Even if she had, I would not find that they are sufficient to prove inadequacy.  These conditions are not inherent in the nature of the housing arrangement (such as the number of beds or bedrooms and the number of inhabitants), but rather are conditions that are remediable and are largely the result of choices made in the details of the housing arrangement; thus, they do not render the housing inherently inadequate (see Appeal of A.K., 58 Ed Dept Rep, Decision No. 17,440 [petitioner provided no information as to why the arrangement was necessitated by the nature of the housing arrangement]; Appeal of R.E.W., 55 Ed Dept Rep, Decision No. 16,608 [choice of owner to rent child’s bedroom on some nights and student having to do homework at a kitchen table did not render the child homeless]).  Therefore, on this record, I find that petitioner has not met her burden of proving that their current residence is inadequate (see e.g. Appeal of G.D. and D.D., 58 Ed Dept Rep, Decision No. 17,541; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of R.E.W., 55 Ed Dept Rep, Decision No. 16,608).

Moreover, petitioner has not established that their current residence is temporary or transitional.  Petitioner and the student have been living at the out-of-district residence, apparently without interruption, since April 2015.  Further, petitioner does not claim or demonstrate that she and the student must vacate the current residence or that there is a limit as to how long they may remain there (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeals of V.C.B., 56 id., Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987).  The homeless liaison avers in an affidavit that, when asked at their July 13, 2018 meeting whether petitioner’s mother might require petitioner and the student to vacate her home at some point, petitioner stated that her mother “wouldn’t do that.”

Accordingly, based on the record before me, I find that petitioner has not met her burden of proving that the student lacks a fixed, regular and adequate nighttime residence.  Therefore, petitioner has not proven that respondent’s determination that the student is not homeless was arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner retains the right to reapply for admission to the district on the student’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE