Appeal of G.R., on behalf of her daughter M.M., from action of the Board of Education of the Brockport Central School District regarding residency and transportation.

Decision No. 15,955

(July 23, 2009)

Harris Beach, PLLC, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

Huxley, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Brockport Central School District (“respondent”) that her daughter, M.M., is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvement 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 sustained.

At the start of the 2007-2008 school year, petitioner and M.M. resided within respondent’s district.  M.M. was enrolled in the district’s schools and attended Westside Academy, an alternative junior/senior high school operated by Monroe and Orleans Board of Cooperative Educational Services, Second Supervisory District.

In February 2008, petitioner left her employment as a home health care aide because her work hours had been reduced to the point that she could no longer afford her rent.  Subsequently, petitioner was unable to afford the rent for her home and her family was evicted on or about March 1, 2008.  Since the eviction, petitioner and her family have stayed with relatives on Garnet Street in Rochester, New York, outside of the district.

On or about March 31, 2008, petitioner informed the district that M.M. was homeless.  From March 2008 to the present, M.M. has continued to attend Westside Academy and the district has provided transportation.  Thereafter, by letter dated September 12, 2008, respondent’s homeless liaison requested that petitioner provide the district with updated information regarding her housing situation and enclosed a form for her to complete.  Petitioner never submitted the form to the district.  However, according to respondent, on September 22 and October 20, 2008, the homeless liaison spoke with petitioner regarding her housing situation and petitioner advised him that she and M.M. were still staying with relatives at the Garnet Street residence.  Additionally, according to respondent, during these conversations, petitioner advised the homeless liaison that she only wanted M.M. to keep her designation as homeless so that M.M. could continue to attend Westside Academy.

By letter dated October 31, 2008, the homeless liaison advised petitioner that M.M. was no longer homeless within the meaning of McKinney-Vento and that she would no longer be treated as a district resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on December 9, 2008.

Petitioner contends that M.M. is a homeless child within the meaning of McKinney-Vento and, therefore, is entitled to attend respondent’s schools and receive transportation.  Petitioner claims that she, M.M. and M.M.’s son lack a fixed, regular and adequate night-time residence and that they are sharing the housing of other persons due to loss of housing and economic hardship.  Petitioner claims that her family’s current housing is inadequate because she, M.M. and M.M.’s son are sharing a three-bedroom house with M.M.’s oldest and middle sisters, the older sister’s husband, the middle sister’s boyfriend, and the middle sister’s two children.  The oldest sister and her husband share one bedroom, the middle sister and her boyfriend share another bedroom and the middle sister’s two children share the remaining bedroom.  Petitioner further maintains that this housing is inadequate because she and M.M.’s son sleep on a mattress in the dining room and M.M. sleeps on a couch in the living room.

Petitioner also asserts that this housing is inadequate because M.M. has no privacy and is constantly disturbed by relatives coming in and/or going out of the living room, which is the central public space in the house, at all hours of the day and night.  Petitioner claims that this housing situation makes studying and general living very difficult for M.M.

Additionally, petitioner contends that due to the inadequacy of this housing, she only intends for her family to remain there temporarily.  Petitioner maintains that it has been difficult for her to find employment because she lacks the necessary resources, including a vehicle, and cares for M.M.’s son during the day while M.M. attends school.  However, petitioner asserts that she recently obtained employment at a local fast food restaurant and has begun saving towards a deposit for an apartment within the district.

To substantiate her claims, petitioner submits an undated letter from her former landlord stating that he would commence eviction proceedings if she did not pay her overdue rent.

Respondent contends that M.M. is not entitled to attend the district’s schools because she is not homeless within the meaning of McKinney-Vento and Education Law §3209.  Respondent maintains that petitioner and M.M. are not homeless because they have been living with M.M.’s older sisters and their families in a house outside the district for over a year.  Respondent asserts that the duration of petitioner’s stay with their relatives indicates that this housing situation has become permanent.  Respondent also alleges that petitioner has made no efforts to locate an apartment within the district and is currently employed outside of it.

To substantiate its claims, respondent submits a surveillance report regarding the Garnet Street residence.  According to the report, an investigator employed by the district contacted the owner of the residence and the owner advised him that the residence is a three-bedroom single family house.  The owner further informed the investigator that eight people were currently living in the house, including petitioner and her family.

Education Law §3209(1)(a) defines 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 accom-modation 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.

I find that M.M. fits the definition of a homeless child under State and federal law.  The record establishes that petitioner, M.M. and M.M.’s son were evicted from their residence and forced to share the housing of relatives due to their eviction and economic hardship.  The record indicates that petitioner, M.M. and M.M.’s son, together with M.M.’s two older sisters, two other adults and two children, are living in a three-bedroom house and that petitioner, M.M. and M.M.’s son have no adequate place to sleep.  Under these circumstances, it is apparent that petitioner’s and M.M.’s current housing is temporary and transitional housing and therefore, petitioner and her family cannot be said to have a fixed, regular, and adequate night-time residence.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow M.M. to attend schools of the district without the payment of tuition and provide transportation services to M.M.

END OF FILE