Appeals of A.J., on behalf of her children, from action of the Board of Education of the Patchogue-Medford Union Free School District regarding residency and transportation.

Decision No. 17,909

(August 13, 2020)

Guercio & Guercio, LLP, attorneys for respondent, Torrey Chin, Esq., of counsel

Tahoe., Interim Commissioner.--In three separate appeals, petitioner challenges determinations of the Board of Education of the Patchogue-Medford Union Free 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, not entitled to attend the district’s schools tuition-free.  Because these appeals present identical issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Prior to the events leading to these appeals, the students were enrolled in respondent’s schools as resident students.  On August 31, 2017, petitioner advised respondent that she had become homeless and submitted documentation on behalf of two of the students indicating that they were homeless and residing in temporary housing within respondent’s district.[1]

On or about December 6, 2018, petitioner informed respondent that she and the two students had relocated to a residence outside of respondent’s district (the “out-of-district residence”).  Petitioner asserted that this living arrangement was temporary.  On February 5, 2019, petitioner further advised respondent that the third student was now also living at the out-of-district residence; however, she reiterated that the situation was temporary.  Respondent permitted the students to continue attending its schools, although it is unclear from the record whether respondent ever rendered a determination that the students were homeless.

On or about August 6, 2019, petitioner completed housing questionnaires for each of the students, in which she stated that they were living with another family at the out-of-district residence due to a loss of housing as a result of economic hardship.  On or about December 18, 2019, respondent conducted a public records search and discovered that the out-of-district residence is part of an apartment complex described as a “lavish country club community.”

In three letters dated January 2, 2020, respondent’s superintendent informed petitioner of her determination that the students were not homeless because the out-of-district residence constituted a fixed, regular and adequate nighttime residence.  The superintendent reasoned that the out-of-district residence was part of a “lavish country club community,” which featured “spacious open floor plan[s]” and various amenities, and that petitioner had continuously resided there since December 6, 2018.  The superintendent concluded that, because the students were neither district residents nor homeless pursuant to McKinney-Vento, they would be excluded from respondent’s schools effective February 3, 2020.  These appeals ensued.

Petitioner maintains that she and the students are sharing the housing of other persons due to loss of housing, economic hardship or a similar reason and are, therefore, homeless within the meaning of McKinney-Vento.  Specifically, petitioner maintains that the entrance of one of the students into a residential treatment program “resulted in los[t] income” which, in turn, “led to eviction.”  Petitioner further states that the out-of-district residence is an apartment with one bedroom and one bathroom and that the students sleep in the living room.  Petitioner requests a determination that the students are homeless and, as such, entitled to attend respondent’s schools without payment of tuition and receive transportation.

Respondent maintains that the appeals must be dismissed because petitioner did not verify any of the three petitions.  On the merits, respondent contends that petitioner has not met her burden of proving that the students are homeless under State or federal law.

The appeals must be dismissed for lack of verification.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  In an appeal regarding a homeless child pursuant to section 100.2(x) of the Commissioner’s regulations, a petitioner may satisfy the verification requirement by submitting a signed statement indicating that the information contained in the petition is true and acknowledging the consequences under the Penal Law for offering a false statement (8 NYCRR §275.5[b]).  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).

Here, petitioner did not submit either an affidavit of verification as required by 8 NYCRR §§275.5 and 275.6 or a signed statement as described in 8 NYCRR §275.5(b).  Although petitioner submitted copies of a form ”Statement of Petitioner” with each petition that, if signed, would have satisfied the requirements of section 275.5(b), these forms are blank and unsigned.[2]  Accordingly, I am constrained to dismiss the appeals for lack of verification (Appeal of Dow, et al., 59 Ed Dept Rep, Decision No. 17,762; Appeal of Nappi, 57 id., Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).

Even if the appeals were not dismissed for lack of verification, they would 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 ....[3]

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).

Petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  Initially, although petitioner alleges that the students are sharing the housing of others due to loss of housing, economic hardship, or a similar reason, she lists only herself and the students as the occupants of the out-of-district address.  Accordingly, because petitioner indicates that the students reside only with her at the out-of-district residence, and she identifies herself as the students’ legal guardian, she has failed to establish that the students are homeless.

With respect to the adequacy of the out-of-district residence, the three petitions submitted by petitioner are nearly identical and include copies of the same evidence.[4]  In these submissions, petitioner states that the out-of-district residence consists of one bedroom, one bathroom, and a living room and that the students “sleep in the living room.”  Petitioner additionally submits a “Suffolk County Department Of Social Services Housing Verification” form, dated January 10, 2020 and completed by the landlord of the out-of-district residence, in which the landlord indicates that he rents the out-of-district residence to petitioner and the students and describes the out-of-district residence as an apartment with heat, water/sewer, garbage collection, hot water, heating, a stove and a refrigerator.  Petitioner also attaches photographs of what is presumably the apartment complex in which her family resides.  The photographs depict a large, well-maintained complex.

Respondent maintains that the out-of-district residence is part of a “lavish country club community,” with “luxurious one and two bedroom apartments on meticulously maintained grounds.”  Respondent also indicates that amenities at the complex “include a clubhouse, fitness center, pool, sauna, playground and tennis court.”  Petitioner did not submit a reply to rebut respondent’s assertions or otherwise explain how her living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,774).

On this record, petitioner has not met her burden of proving that the out-of-district residence is inadequate.  Although petitioner states in a conclusory manner that the students sleep in the living room, she does not further describe the students’ sleeping arrangement or submit any evidence, such as photographs, to establish how the out-of-district residence is inadequate.  Without any further evidence to support her contentions, petitioner’s conclusory statements are insufficient to meet her burden of proof on this issue (see Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804; Appeal of a Student with a Disability, 53 id., Decision No. 16,621).

Moreover, petitioner has not established that the out-of-district residence is temporary or transitional.  The record reflects that petitioner and at least two of the students have lived at the out-of-district residence since December 6, 2018.  While petitioner submits a stipulation of settlement between her and her landlord, which stayed execution of an eviction warrant on the out-of-district residence until February 15, 2020, petitioner neither asserts nor establishes that she and the students have had to vacate the out-of-district residence 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).[5]  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 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).  Accordingly, on this record, I cannot find that the out-of-district residence is temporary or transitional.

Finally, while the record contains evidence suggesting that petitioner is experiencing financial difficulties and has sought assistance from the Suffolk County Department of Social Services, the Commissioner has long held that economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of R.E.W., 55 id., Decision No. 16,808).

Therefore, 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 district schools or receive transportation under McKinney-Vento to be arbitrary or capricious.

Although the appeals 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.

THE APPEALS ARE DISMISSED.

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