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Decision No. 16,426

Appeal of C.D. from action of the Board of Education of the Solvay Union Free School District regarding residency and transportation.

Decision No. 16,426

(October 5, 2012)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Christopher M. Militello, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Solvay Union Free School District (“respondent”) that she is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record indicates that, at the commencement of the 2011-2012 school year, petitioner resided with her mother, step-father and two siblings within the district and attended respondent’s schools as a resident student.  According to respondent, shortly thereafter, petitioner and her family moved to a residence in Camillus, New York, outside the district.  However, petitioner’s family did not advise the district of this move, and petitioner and her two siblings continued to attend respondent’s schools.

According to respondent’s middle school principal/homeless liaison (“liaison”), in early March 2012, the district commenced a residency investigation.  The liaison claims that, as a result of this investigation, by letter dated March 6, 2012, the district notified petitioner’s parents that a determination had been made that petitioner was not a district resident and that she would be excluded from respondent’s schools after March 30, 2012.  However, this letter is not part of the record.   

On or about March 21, 2012, after petitioner verbally advised high school administrators that she was seeking to attend respondent’s schools as a homeless student, petitioner was referred to the liaison.  Subsequently, petitioner met with the liaison and advised him that, on March 21, 2012, she moved out of the Camillus residence due to alleged emotional and verbal abuse from her step-father and her mother’s failure to defend her.  Petitioner also stated that she had a verbal altercation with her parents on that day and that she no longer felt safe residing in their home.  Petitioner informed the liaison that on March 22, 2012, she filed a New York State Domestic Incident Report against her step-father with the Camillus Police Department (“police”), as result of this incident.  The record indicates that the police determined that no criminal conduct had occurred.

At that time, petitioner further asserted to the liaison that she could not live with her father, who resides outside the district in Liverpool, New York, because she was concerned that her mother and step-father would find her and take her back to their home.  Petitioner advised that, since March 22, 2012, she had been residing with her aunt and uncle in Marcellus, New York, within the district.

According to the liaison, on March 30, 2012, based on the information he received from petitioner regarding the March 21, 2012 incident, he filed a Report of Suspected Child Abuse or Maltreatment (“report”) with the Onondaga County Office of Children and Family Services (“OCFS”).  By letter dated April 19, 2012, OCFS advised the liaison that the report had been deemed “unfounded.”  

By letter dated March 30, 2012, the liaison informed petitioner of the district’s determination that she was no longer entitled to “enrollment in and/or transportation to” the district’s schools.  Although the letter does not specifically set forth the basis for this determination, it states that C.D.’s family had moved out of the district, that all three of their children would need to enroll in the new district and acknowledges, without addressing, C.D.’s assertions that she could no longer live with her mother and step-father.  The letter then merely indicates that C.D. could appeal to the “LEA liaison” and, thereafter, to the State Education Department.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 11, 2012.

Petitioner contends that she is homeless within the meaning of McKinney-Vento because she is sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.  Respondent argues that petitioner is not homeless within the meaning of McKinney-Vento.

The appeal must be dismissed as moot.  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). 

On or about August 30, 2012, respondent submitted an affidavit by its liaison stating that, on or about August 24, 2012, petitioner’s step-father contacted respondent’s assistant high school principal to advise the district that petitioner’s father had recently been awarded custody of her by the Onondaga Family Court and that petitioner would be residing with her father in Liverpool, New York, outside the district, for the 2012-2013 school year.  The liaison’s affidavit also states that he was unable to confirm this information with petitioner’s father. 

Subsequently, respondent submitted an affidavit by its superintendent stating that he met with petitioner’s father, the liaison and respondent’s attorney on September 6, 2012, at which time petitioner’s father confirmed that, in July 2012, the Onondaga Family Court issued an order awarding him custody of petitioner.  The superintendent’s affidavit further asserts that petitioner’s father stated that petitioner was residing with him in Liverpool, New York, outside the district, but that she wanted to continue attending the district’s schools.  However, this court order is not part of the record.

Based on the aforementioned information, I conclude that petitioner now resides with her father at his out-of-district residence.  As a result, the issues presented in this appeal are academic, and the appeal must be dismissed as moot.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Based on the record before me, I find that petitioner does not meet the definition of a homeless child under either State or federal law (42 USC §11431 etseq.; Education Law §3209; and 8 NYCRR §100.2[x]).  Thus, petitioner has failed to demonstrate that she lacked a fixed, regular and adequate night-time residence while living with her aunt and uncle and is homeless (seeAppeals of P.R., 48 id. 24, Decision No. 15,781; Appeal of S.D., 47 id. 44, Decision No. 15,620).  

Although the appeal is dismissed on procedural grounds, I am compelled to comment on respondent’s failure to comply with certain requirements of 8 NYCRR §100.2(x)(7).  If, as in this case, a district disputes that a student is homeless, it must follow the dispute resolution procedures established in Commissioner’s regulations, including providing the student and/or the student’s parents an opportunity to submit information before making a final determination (8 NYCRR §100.2[x][7][ii][a]).  At the conclusion of this dispute resolution process, if the district determines that a student is not homeless, it must provide written notice that the student is not entitled to attend its schools and the basis for the determination (8 NYCRR §100.2[x][7][ii][b]).  The notice also must state that the determination may be appealed to the Commissioner of Education and contain the name and contact information for the school district’s homeless liaison, who is required to assist in filing such an appeal, along with a form petition (8 NYCRR §§100.2[x][7][ii][b], [iii][c][1] and [2]). 

In this case, the March 30, 2012 letter to petitioner failed to specifically state that respondent had determined that she was not a homeless child or youth within the meaning of McKinney-Vento.  Although the letter alludes to petitioner’s assertion that she could not live with her parents, it does not set forth any conclusion as to those assertions.  Moreover, although the letter states that petitioner could, at her option, “appeal this initial decision” whereupon she would be “given a final decision,” there is no indication that petitioner was affirmatively afforded an opportunity to present information regarding her claim of homelessness.  The letter also failed to include a copy of the form petition should she choose to appeal to the Commissioner of Education.  I remind respondent of the importance of ensuring that the educational needs of this vulnerable population is met and I admonish respondent to ensure that all such students are properly served in accordance with the State and federal requirements designed to protect their educational welfare. 

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner made no claims regarding her residency in respondent’s school district in this appeal and that she has the right to reapply for admission at any time and to submit any documentary evidence of residency, including, but not limited to, court orders, for respondent’s consideration pursuant to 8 NYCRR §100.2(y).

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

THE APPEAL IS DISMISSED.

END OF FILE.