Appeal of E.L., on behalf of her daughter I.L., from action of the Board of Education of the Bellmore Union Free School District regarding residency.

Decision No. 17,885

(July 22, 2020)

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Bellmore Union Free School District (“respondent”) that her child (the “student”) is neither a district resident nor 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.  The appeal must be dismissed.

Petitioner registered the student for kindergarten in respondent’s district in August 2014 based on her representation that she and the student would soon reside at a home owned by her brother (the “uncle”) within the district’s geographical boundaries (the “in-district address”).  Petitioner indicated that she and the student would be moving to the in-district address in a few months, after certain work could be done on the property.

According to respondent, in spring 2016, it became apparent that petitioner and the student had never relocated from petitioner’s residence in the Bronx (the “Bronx address”) to the in-district address.  Consequently, respondent commenced an investigation and held a residency meeting.  At the residency meeting in May 2016, district representatives met with petitioner and the student’s grandmother, and petitioner admitted that she had never moved to the in-district address because there were numerous issues with the property that had to be remediated.  By letter dated June 3, 2016, respondent excluded the student from its schools effective September 2016.

On or about September 2, 2016, petitioner submitted updated registration materials for the student.  In the updated registration packet, petitioner included a new affidavit of residency from the uncle indicating she and the student resided at the in-district address and various documents bearing her name and the in-district address.  The student was reregistered in the district.

Sometime thereafter, respondent again became suspicious that no one lived at the in-district address because it did not appear occupied and looked like a construction zone.  Respondent engaged an investigator to observe both the in-district address and the Bronx address.  In May 2019, a three-week investigation concluded that petitioner and the student did not reside at the in-district address.  Consequently, by letter dated May 28, 2019, respondent explained that the district had “received information indicating that [the student was] neither a resident nor a homeless student” and that the student would be excluded at the end of the school year.

A residency meeting was held at petitioner’s request on June 19, 2019.  At the meeting, petitioner presented utility bills for the in-district address.  According to respondent, the bills showed very low levels of use, inconsistent with residential use.  Moreover, respondent obtained tax records that showed the in-district address was not rated for residential use.  After she was informed of the district’s surveillance evidence, petitioner admitted that she was not living at the in-district address but asserted that she might live in a trailer on the property in the fall.  She further admitted that she never lived at the in-district address during the 2018-2019 school year.  By letter dated June 20, 2019, respondent notified petitioner of its decision that petitioner and the student did not reside in the district and that the student would be excluded from school at the end of the school day on June 21, 2019.

On August 20, 2019, petitioner claimed to respondent that she was homeless and living at the Bronx address.  According to the record, petitioner was provided with forms to fill out regarding her claim of homelessness, but she did not do so.  By letter dated August 27, 2019, respondent determined that petitioner and the student were not homeless as defined by McKinney-Vento.  The decision was based on evidence from the investigation that petitioner and the student lived at the Bronx address and that such residence was a fixed, regular, and adequate nighttime location.  The letter informed petitioner that the student would be excluded from the district’s schools as of the end of the school day on September 27, 2019.  This appeal ensued.

Petitioner argues that the student is homeless because she and the student lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.

Respondent contends that petitioner failed to meet her burden of proof and the district acted lawfully.

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).

In support of the petition, petitioner provides a consumer complaint and a letter retaining legal representation.  These documents tend to prove that petitioner’s relatives had a dispute with a contractor whom they had employed to perform construction at the in-district address.  Additionally, in the petition, petitioner lists the Bronx address as her current address and states, without explanation, that she is homeless.  Petitioner provides no evidence regarding the adequacy of the Bronx address and does not allege that the student’s living arrangement is temporary or transitional.

Respondent has provided evidence that investigators surveilled the Bronx address and in-district address over the course of three weeks during May 2019.  An investigator observed the in-district address on five different weekdays during the morning hours.  The investigator saw that the property was under construction and did not appear habitable.  The investigator never saw any sign of petitioner or the student at the in-district address.  Conversely, an investigator observed the Bronx address on six weekday mornings and saw petitioner and the student getting into a vehicle registered to petitioner before 8:00 a.m. each morning.  An investigator also observed petitioner and the student arriving at the Bronx address on three evenings during the May 2019 investigation.

Petitioner has failed to meet her burden to prove that the student is homeless under State or federal law.  Petitioner has offered no proof that the student lacks a fixed, regular, and adequate nighttime residence.  Petitioner provides no photographs or description of the Bronx address to demonstrate that it is inadequate.  Therefore, on this record, petitioner has not met her burden of proving that the Bronx address is not fixed, regular, and adequate (see e.g. Appeal of O.O. and D.O., 59 Ed Dept Rep, Decision No. 17,723).

Additionally, the record does not support the conclusion that the Bronx address is temporary or transitional.  Based on the record, petitioner has expressed her intent to move to the in-district address for several years, but the record indicates she has continued to live at the Bronx address since at least 2014.  There is no evidence that petitioner or the student need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeal of B.N. and J.N.,58 Ed Dept Rep, Decision No. 17,448; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).

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 the student at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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