Appeal of J.B., on behalf of her daughter T.B.-J., from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and transportation.

Appeal of J.B., on behalf of her son, C.B.-J., from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and transportation.

Decision No. 17,673

(July 1, 2019)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ELIA, Commissioner.--In two separate appeals, petitioner challenges determinations of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her children (“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 tuition-free.  Because these appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Prior to June 2015, the students were enrolled in respondent’s schools as resident students.  In June 2015, petitioner and, her Department of Social Services caseworker notified respondent that the students were homeless and, accordingly, respondent permitted the students to continue attending its schools as homeless students pursuant to McKinney-Vento.  Subsequently, petitioner and the students relocated a number of times to a number of temporary residences and were considered by respondent as homeless.

On or about March 2, 2016 petitioner and the students moved in with the students’ uncle at an address in Brooklyn, New York (“initial Brooklyn address”).  Based on petitioner’s claims that she and the students were “doubled-up” and that this residence was temporary, respondent permitted the students to continue attending its schools as homeless students for the remainder of the 2016-2017 school year.  By June 2017, following an investigation, respondent concluded that the initial Brooklyn address was a fixed, regular and adequate nighttime residence.

By letter dated June 1, 2017, respondent’s assistant superintendent for finance and facilities (“assistant superintendent”) informed petitioner of her determination that she and the students were neither district residents nor homeless.  The assistant superintendent indicated that the students would be excluded from respondent’s schools effective June 23, 2017.

Subsequently, respondent’s homeless liaison (“liaison”) learned that the 2017-2018 school year would be the terminal year of petitioner’s son C.B.-J. in the district’s middle school.  Accordingly, the students were permitted to remain enrolled in the district’s schools for the 2017-2018 school year.

On September 1, 2017, petitioner informed the liaison that she and the students had moved to a second location in Brooklyn, New York (“Brooklyn address”) and that they were living “doubled-up” on a temporary basis with petitioner’s childhood friend.

By June 2018, respondent had not received any updates from petitioner regarding petitioner’s homeless students.  However, respondent alleges in its answer and the affidavit of the liaison that the district’s investigation indicated that petitioner and the students had resided at the Brooklyn address since at least September 1, 2017 and that the Brooklyn address was a fixed, regular and adequate nighttime residence.

By letter dated June 20, 2018, the assistant superintendent informed petitioner of her determination that she and the students were neither residents of the district nor homeless.  The assistant superintendent indicated that the students would be excluded from district schools effective July 1, 2018.  Petitioner was given until June 28, 2018 to present documentation for respondent’s consideration regarding the students’ homeless status.  Petitioner was notified that if she failed to contact respondent prior to June 28, 2018, its June 20, 2018 determination would be deemed final.  Petitioner was notified of her right to appeal respondent’s determination pursuant to §310 of the Education Law within 30 days of the date of the determination.

On or about August 28, 2018, petitioner contacted the liaison indicating that she did not receive the June 20, 2018 exclusion letter until August 27, 2018.  Petitioner told the liaison that she and the students remained homeless at the Brooklyn address.  Petitioner was told that because she did not contact respondent by June 28, 2018, the exclusion determination was final, and she would have to appeal such determination to the Commissioner of Education.

On October 11, 2018, petitioner arrived unannounced at the office of the liaison seeking assistance in appealing respondent’s determination.  In the absence of the liaison, petitioner spoke to the district registrar who reiterated that respondent’s June 20, 2018 determination had become final because she failed to respond by June 28, 2018.  At this time, petitioner indicated that she had learned of respondent’s June 20, 2018 determination in August 2018.  Petitioner was provided with the FORM NOTICE OF PETITION AND PETITION FOR AN APPEAL INVOLVING A HOMELESS CHILD AND YOUTH (“appeal forms”).

By email dated October 12, 2018, petitioner requested a meeting with the liaison to obtain assistance in completing the appeal forms, which meeting was held on October 16, 2018.  This appeal ensued.

Petitioner alleges that the students are homeless pursuant to McKinney-Vento.  Petitioner maintains that she and the students share the housing of a family friend and her two children due to loss of housing, economic hardship or similar reason.  Petitioner further maintains that she and the students are “doubled-up” and not yet housed in permanent housing.  Petitioner asserts that she is rebuilding her family’s finances due to medical expenses and hotel stays.  Petitioner maintains that she did not receive respondent’s exclusion letter until August 27, 2018 and that the liaison was not notified of the exclusion.  Petitioner contends that she was not provided with the correct appeal forms.

Respondent contends that petitioner has failed to establish facts sufficient to support her claim for, or demonstrate a clear legal right to, the relief requested and that the appeal is untimely.  Respondent also contends that its actions were in accordance with McKinney-Vento.  Respondent maintains that its determination was based on credible evidence and in accordance with district and educational policy.  Respondent also maintains that its credibility determinations should not be reversed.

The appeal must be dismissed as 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Respondent’s final determination from which petitioner appeals was made on June 20, 2018 and petitioner did not commence this appeal until October 16, 2018, almost three months later.  Petitioner asserts that her delay in filing the appeal should be excused because respondent mailed the exclusion letter using an incorrect zip code and she did not receive the letter until August 27, 2018.  However, even if I accept petitioner’s  allegation that she did not receive the exclusion letter until August 27, 2018, she fails to explain why she waited fifty days thereafter to commence this appeal. The record indicates that after August 27, 2018, petitioner did not follow up with the homeless liaison or any other district staff until October 11, 2018, when she made an unannounced visit, met with the district’s registrar and received appeals forms. That meeting occurred more than 30 days after her alleged receipt of respondent’s determination letter and petitioner has provided no explanation for her delay in seeking assistance to commence an appeal.  Accordingly, petitioner has not established good cause for her delay and the appeal must be dismissed as untimely.

Although the appeal must be dismissed as untimely, I note that the assistant superintendent’s June 20, 2018 determination that the students were not homeless did not include the form homeless petition as required by §100.2(x)(7)(iii)(c)(i) of the Commissioner’s regulations.  Although the form petition was ultimately provided to petitioner, and petitioner makes no claim that the failure of respondent to provide the form homeless petition resulted in the untimely commencement of this appeal, I remind respondent to ensure that it fully complies with the Commissioner’s regulations in the future.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on the students’ behalf at any time should their circumstances change or additional evidence of the adequacy of her current residence be obtained and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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