Appeal of D.R., on behalf of her sister J.P., from action of the Board of Education of the Sandy Creek Central School District regarding residency and transportation.

Decision No. 15,793

(July 25, 2008)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, James A. Gregory, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sandy Creek Central School District (“respondent”) that her sister, J.P., is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §§11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or to receive transportation.  The appeal must be dismissed.

On or about September 11, 2007, J.P.’s mother, E.P., submitted a registration form to enroll J.P. in 11th grade in respondent’s district, indicating that J.P. lived with her within respondent’s district.

According to respondent, on September 12, 2007, J.P. told the district’s homeless liaison that she was homeless and that she lived with her sister outside the district.  Shortly after this conversation, a STAC 202 – Designation of School District of Attendance for a Homeless Child form (“STAC 202”) was completed on J.P.’s behalf, pursuant to §100.2(x) of the Commissioner’s regulations, designating respondent’s district as J.P.’s school district of attendance.[1] The STAC form indicates that J.P. had resided with petitioner, outside respondent’s district, since July 15, 2007.

By letter dated September 21, 2007, the superintendent requested that E.P. complete a student residency questionnaire.  On the questionnaire, E.P. indicated that J.P. lived with petitioner and that this was neither a “temporary living arrangement” nor was it “due to loss of housing or economic hardship.”  E.P. also submitted a letter to respondent dated October 15, 2007, in which she stated that J.P. “and/or her family are not in a homeless situation.  [J.P.’s] situation is that of an ‘Unaccompanied Adult Minor’ which falls under the McKinney-Vento Act.  By all due respect it has been [J.P.’s] choice not to live accompanied by her parents.  However she is residing in a home with her sister [petitioner] and spouse....”

On October 19, 2007, the superintendent notified petitioner, J.P. and E.P. that a determination had been made that J.P. was not homeless within the meaning of McKinney-Vento and that she would be excluded from respondent’s schools after November 21, 2007.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 5, 2007.

Petitioner contends that J.P. is homeless within the meaning of McKinney-Vento and, therefore, is entitled to continue her enrollment in respondent’s district.  Petitioner acknowledges that J.P. currently resides with her and “has her own bedroom in our four bedroom home.”  Petitioner also admits that J.P.’s mother is not homeless.  Petitioner claims that J.P. lived with E.P. until E.P. “lost her apartment.”  Petitioner explains that E.P. “got her apartment back” and now lives in the four-bedroom residence with her two other children, J.P.’s father, his girlfriend and their two daughters.  Petitioner asserts that J.P. “is not comfortable with the situation.  She has a hard time focusing on her education and any other teenage situations.  Aside from them all being there, [J.P.] and our sister have a hard time getting along.”  In an attachment to her petition dated November 27, 2007, petitioner adds that her cousin, his wife and their daughter have also moved into E.P.’s four-bedroom apartment, bringing the total number of residents to 10.

Respondent asserts that the appeal must be dismissed as untimely.  Respondent also contends that J.P. is not homeless within the meaning of McKinney-Vento and Education Law §3209.  Respondent submits an affidavit from the superintendent, who states that the district has informed J.P. and E.P. that J.P. “may attend the District as a resident as there has been no claim or showing that [J.P.], a minor, is independent financially or for healthcare.”

To the extent petitioner seeks J.P.’s admission to respondent’s schools, the appeal is moot.  As noted above, the superintendent has submitted a sworn statement that the district has informed J.P. that “as an apparently unanticipated minor, [she] is free to attend the District as a resident.”  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350). 

Petitioner’s claim that respondent is obligated to provide transportation to J.P. as a homeless student 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 O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Together with the petition in this case, respondent’s homeless liaison submitted an affidavit of service indicating that she accepted personal service of the petition on November 28, 2007.  Because service occurred more than 30 days after respondent’s October 19, 2007 determination that J.P. was not homeless within the meaning of McKinney-Vento, petitioner’s transportation claim must be dismissed as untimely. 

Even if petitioner’s transportation claim were not dismissed as untimely, it would be dismissed on the merits.  At the time this appeal was commenced, Education Law §3209(1)(a) defined a homeless child as:

1. a child or youth who lacks a fixed, regular, and adequate night-time 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;
   4. awaiting foster care placement; or
   5. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or
2. a child or youth who has a primary night-time 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 ....

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 addition, at the time this appeal was commenced, §100.2(x)(1)(vi) of the Commissioner’s regulations defined an unaccompanied youth as “a homeless child for whom no parent or person in parental relation is available.”  That section was amended, effective June 12, 2008, to clarify the definition of unaccompanied youth in conformance with State and federal law.  Section 100.2(x)(1)(vi) now provides, in pertinent part, that an unaccompanied youth means “a homeless child or youth not in the physical custody of a parent or legal guardian.”

Despite the conflicting evidence in the record regarding when J.P. began living with D.R. outside respondent’s district, she does not fit the definition of a homeless child or an unaccompanied youth under either State or federal law.  D.R. claims that, since July 15, 2007, J.P. has resided in her four-bedroom house outside of the district.  Under these circumstances, J.P. has a fixed, regular night-time residence and there is insufficient evidence on the record that such residence is inadequate.

The record also contains a copy of a student registration form submitted by E.P. on September 11, 2007 in which she stated that J.P. resided at her in-district address.  There is evidence in the record that E.P. has a fixed, regular night-time residence within the district.  The petition includes only conclusory statements from petitioner that E.P.’s four-bedroom apartment houses 10 people and is inadequate because J.P. is “not comfortable with the situation,” has a difficult time “focusing” and does not get along with a sibling who lives there.  While it is unfortunate that J.P. does not feel comfortable at her mother’s residence, there is nothing in the record that indicates that J.P. was forced to leave her mother’s residence and that she could not return to it if she so chooses.  Consequently, the provisions of Education Law §3209(4) and McKinney-Vento regarding the transportation of homeless children and unaccompanied youth are not applicable in J.P.’s circumstances (seeAppeal of N.W., 47 Ed Dept Rep 87, Decision No. 15,635; Appeal of M.W., 46 id. 151, Decision No. 15,471; Appeal of G.D. and T.D., 45 id. 191, Decision No. 15,298).

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Petitioner has not established that J.P. is sharing the housing of other persons due to loss of housing, economic hardship or similar reason rather than her preference to reside with petitioner instead of with her mother (seeAppeal of G.D. and T.D., 45 Ed Dept Rep 191, Decision No. 15,298).  Accordingly, based on the record before me, I find respondent’s determination to be reasonable.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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