Appeal of J.C., on behalf of her children J.P. and J.P., from action of the Board of Education of the Central Islip Union Free School District regarding residency and transportation.

Decision No. 17,897

(August 6, 2020)

Kevin A. Seaman Esq., attorney for respondent.

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Central Islip Union Free School District (“respondent”) that her children J.P. and J.P. (“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.

Although the record in this appeal is sparse, it reflects that the students attended respondent’s schools prior to the events described in this appeal.  In April 2018, petitioner and the students relocated to a residence outside the district (“the out-of-district residence”).  At this time, the district determined that the students were homeless students pursuant to McKinney-Vento and permitted them to attend its schools.

By letter dated August 23, 2019, respondent’s assistant superintendent for personnel informed petitioner of his determination that the students were neither district residents nor homeless.  This appeal ensued.

Petitioner maintains that her family is “currently living as holdover tenants in [her] current dwelling” and that her family’s rental is month-to-month.  Petitioner alleges that she made an oral agreement with her landlord to vacate the premises as soon as possible or face eviction.  Petitioner maintains that she is working with a real estate agent to locate housing within the district.  Petitioner requests a determination that the students are homeless, and transportation thereto, as well as “participation in football practice, a school related activity.”

Respondent did not submit a timely answer in this appeal, but requests permission to submit a late answer pursuant to §275.13 of the Commissioner’s regulations.  A late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).

Respondent explains that it served the answer six days late because “[t]here was some confusion in the appeal submission being forwarded” to its counsel by the homeless liaison, and because the “protocols in effecting” homeless appeals can be “daunting.”  I find that respondent has not established a sufficient excuse for its late answer on this record.  Accordingly, I find no basis to accept the late answer and the factual allegations set forth in the petition shall be deemed true (8 NYCRR §275.11; see Appeal of Pierre, 47 Ed Dept Rep 513, Decision No. 15,768; Appeal of Raines, 45 id. 21, Decision No. 15,246).  Consequently, I have not considered those portions of respondent’s memorandum of law which cite or rely upon respondent’s answer or supporting documents.

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).

Here, petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  According to the district’s August 23, 2019 exclusion letter, petitioner’s family has resided at the out-of-district residence since April 17, 2018.  Petitioner does not allege that the out-of-district residence is inadequate and submits no evidence in support of this claim, such as photographs or a description of the out-of-district residence.  Therefore, on this record, petitioner has not met her burden of proving that the out-of-district residence is inadequate (Appeal of J.B., 56 Ed Dept Rep, Decision No. 17,115; Appeal of T.B. 48 id. 4, Decision No. 15,774).

Nor has petitioner established that the out-of-district residence is temporary or transitional.  In her petition, petitioner merely indicates that her “family is currently living as holdover tenants in current dwelling.”  She indicates that she pays her rent on a month-to-month basis and that she has an oral agreement with her landlord to vacate the premises as soon as possible or be subject to eviction.  However, this is inconsistent with the fact that petitioner has resided at the out-of-district residence since at least April 2018.  It is also, according to the district’s August 23, 2019 exclusion letter, inconsistent with a statement petitioner made to respondent’s homeless liaison, wherein petitioner confirmed that she had a rental agreement with the property owner of the out-of-district residence.

In any event, petitioner submits no evidence (such as a lease or a notice of eviction or a statement from her landlord) suggesting that she is, in fact, required to vacate the out-of-district residence.  In analogous situations involving foreclosure, the Commissioner has held that the mere threat of eviction, without a specific date as to when the premises must be vacated or evidence that a loss of housing is otherwise imminent, is insufficient to establish that a residence is temporary or transitional for purposes of a homeless determination (see e.g. Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608).  Thus, petitioner’s conclusory statements alone do not establish that she and the students need to vacate the premises or that there is a fixed time limit as to how long they can remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id. Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).[2]

Petitioner additionally submits an undated letter from a real estate agent indicating that the agent has been working with petitioner “for over a year” to find adequate housing in the district and that the “rental market is very hot, which means there is a limited inventory.”  Petitioner’s general intention to move back to the district at some point, however, does not establish that her current residence is temporary or transitional within the meaning of Education Law §3209 (see e.g. Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404).  Accordingly, I cannot find that the out-of-district residence is temporary or transitional.

Thus, based on the record before me, petitioner has failed to demonstrate that she and the students lack a fixed, regular and adequate nighttime residence or that their residence is temporary or transitional within the meaning of McKinney-Vento.  Accordingly, I cannot find respondent’s determination that the students are not homeless and, thus, not entitled to attend the district’s schools or receive transportation under McKinney-Vento, to be arbitrary or capricious.  In light of this determination, I need not consider petitioners’ request concerning “participation in football practice.”

Although the appeal must be dismissed, I note that 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.

THE APPEAL IS DISMISSED.

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