Appeal of N.L., on behalf of her children, from action of the Board of Education of the Potsdam Central School District regarding residency and transportation.

Decision No. 18,141

(July 7, 2022)

Ferrara Fiorenza PC, attorneys for respondent, Catherine E. M. Muskin, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Potsdam 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, not entitled to attend the district’s schools.  The appeal must be dismissed.

Petitioner previously lived with her spouse and children at a residence located within respondent’s district (the “in-district residence”).  Several years prior to the events described herein, petitioner separated from her spouse.  Her spouse continued to reside at the in-district residence, while petitioner and the students moved to an apartment.  After living in the apartment “for over a year,” petitioner and the students relocated to a residence located outside of respondent’s district (the “out-of-district residence”) on or about April 1, 2020.

On September 13, 2021, respondent’s superintendent informed petitioner that the students did not qualify as homeless students.  Petitioner thereafter completed a housing questionnaire and met with the superintendent to discuss her housing situation.

By letter dated September 30, 2021, the superintendent notified petitioner of the district’s determination that the out-of-district residence was fixed, regular, and adequate.  Consequently, the superintendent indicated that the students would be excluded from respondent’s schools effective October 12, 2021.  This appeal ensued.

Petitioner maintains that she and the students are homeless because they are sharing the housing of other persons due to loss of housing, economic hardship, or similar reason. 

Respondent contends that petitioner and the students are not homeless and that petitioner has failed to meet her burden of proof. 

First, I must address several procedural matters.  Respondent  requests permission to submit a late answer pursuant to section 275.13 of the Commissioner’s regulations.  Respondent claims that it served the answer late due to a procedural mistake made by the district’s homeless liaison, who “inadvertently failed to provide the petition to anyone at the [d]istrict for response.”  Respondent contends that the answer, which is over three months late, should be accepted because petitioner has not objected, and the students suffered no prejudice on account of the automatic stay provisions of McKinney-Vento and State law (see 42 USC § 11432 [g] [3] [E]; Education Law § 3209 [5] [c]).

Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR 276.3).  Similarly, a late answer may be considered in the discretion of the Commissioner if the respondent provides good reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed true (8 NYCRR 275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).

While I am sympathetic to the district’s mistake, the Commissioner has consistently rejected late answers under similar circumstances (see Appeal of J.C.., 60 Ed Dept Rep, Decision No. 17,897; Appeal of C.H., 59 id., Decision No. 17,669; Appeal of D.S., 59 id., Decision No. 17,675).  Consequently, I have not considered respondent’s late answer or those portions of respondent’s memorandum of law which cite or rely upon respondent’s answer or supporting documents.

Petitioner also requests permission to submit a letter dated March 14, 2022, that provides additional information and objects to respondent’s memorandum of law.  Additional affidavits, exhibits, and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  As stated above, I have not accepted respondent’s late answer or those portions of respondent’s memorandum of law which cite or rely upon respondent’s answer or supporting documents.  Consequently, I need not consider petitioner’s March 14, 2022 letter.

Turning to the merits, pursuant to Education Law § 3209 (1) (a), a “homeless child” is:  (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “a supervised publicly or privately operated shelter designed to provide temporary living accommodations” or “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 section 100.2 (x) of the Commissioner's regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a [2]). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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.  Petitioner claims that she and the students are residing at the out-of-district residence with her boyfriend and his child.  She asserts that they are “doubled-up … during the pandemic for financial reasons.”  Petitioner submits no other evidence concerning the nature of the out-of-district residence, such as a description of the students’ living arrangements.[2]  The mere assertion that a parent and student are sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  Additionally, to the extent petitioner is experiencing financial difficulties, 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).  Accordingly, I cannot conclude that the out-of-district residence is inadequate within the meaning of McKinney-Vento (see Appeals of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeal of E.M.F., 53 id., Decision No. 16,538).  

Petitioner has also failed to establish that her residence is temporary or transitional.  According to respondent’s September 30, 2021 determination letter, petitioner and the students have lived at the out-of-district residence, which appears to be owned by her boyfriend, since at least April 1, 2020.  Although petitioner states that the out-of-district residence is not “secure” because she “has no lease and/or rental agreement,” this does not establish that she or the students will have to vacate the out-of-district residence or that there is a fixed time limit as to how long they can remain (see Appeal of A.B. and J.M., 56 Ed Dept Rep, Decision No. 17,096; Appeal of P.B., 55 id., Decision No. 16,804; Appeal of a Student with a Disability, 53 id., Decision No. 16,621).

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. 

THE APPEAL IS DISMISSED.

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