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Decision No. 16,538

Appeal of E.M.F., on behalf of her daughter D.F., from action of the Board of Education of the East Williston Union Free School District regarding residency.

Decision No. 16,538

(August 28, 2013)

Guercio & Guercio, LLP, attorneys for respondent, Christopher F. Mestecky, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the East Williston Union Free School District (“respondent”) that her daughter, D.F., is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”)and is, therefore, not entitled to attend the district’s schools. The appeal must be dismissed.

The record indicates that until approximately March31, 2013, petitioner resided within respondent’s district where her children attended school. On or about April 1,2013, petitioner and her children moved into a residence in Roslyn Heights, New York, outside the district. Subsequently, the district became aware of this move.

By letter dated April 15, 2013, the district’s assistant superintendent for business (“assistant superintendent”) advised petitioner that her daughter, D.F., might no longer be entitled to attend the district’s schools on a tuition-free basis because a question had arisen regarding petitioner’s residency. The letter also informed petitioner that a residency hearing was scheduled for April 22, 2013.

At the residency hearing, petitioner acknowledged that she was no longer a resident of the district. Petitioner then claimed that she and her family were homeless within the meaning of McKinney-Vento and, therefore, her daughter was entitled to continue attending the district’s schools on a tuition-free basis.

Petitioner stated that, on March 31, 2013, the lease on her in-district residence expired and that, despite her landlord’s offer to renew the lease on the same terms, she declined to do so because of alleged financial difficulties. Specifically, petitioner stated that shedeclined to renew the lease for the following two reasons:

(1) her Fall 2012 change in employment resulted in her annual salary decreasing from $180,000 to $140,000; and (2)her decision to pay for her son’s private college tuition, which she asserted was approximately $38,000. Petitioner alleged that, although she had enough funds to make a down payment/security deposit for a new residence, she could not afford to do so because she was saving money to pay for her son’s private college tuition.

Petitioner further alleged that, when her lease expired, her sister invited petitioner and her family to live with her in Roslyn Heights, outside the district. Petitioner stated that her sister owns the Roslyn Heights residence and that six people share this alleged “two and a half bedroom” home. Petitioner asserted that she and her daughter share one of the bedrooms in this residence, her sister and mother share another bedroom and her son has his own bedroom. Although petitioner indicated that her sister’s friend also resides in the residence, she did not explain where the friend sleeps. In addition, petitioner stated that all of her family’s belongings are at her sister’s residence, with some stored in the basement and garage.

Additionally, at the residency hearing, petitioner stated that, although she intends for this living situation to be temporary, her sister has not indicated any time period by which petitioner and her family must vacate the Roslyn Heights residence. Petitioner also asserted that she was pursuing the possibility of renting a room for herself and her daughter in the residence of a friend, allegedly within the district.

Subsequently, by an undated letter, the assistant superintendent advised petitioner of the determination that her daughter was not a district resident. The letter further stated that this determination was based on the district’s investigation and petitioner’s testimony at the residency hearing.

The letter also stated that, based on the information petitioner had provided to the district to date, a preliminary determination had been made that D.F. was not homeless because she had a fixed, regular and adequate night-time residence. The letter informed petitioner that she should submit any additional information or documentation in support of her claim that D.F. was homeless to the district prior to May 1, 2013, because the district would be making a final homeless determination onthat date.

Thereafter, by an undated letter, the assistant superintendent advised petitioner that, based on the district’s investigation of her homeless claims, including a home visit1 to the Roslyn Heights residence by the district’s homeless liaison, a determination had been made that her daughter was not homeless within the meaning of McKinney-Vento and that she would be excluded from school, effective May 31, 2013. This appeal ensued. Petitioner’s request for interim relief was granted on June 4, 2013.

In her petition, petitioner asserts that her family moved in with her sister, outside the district, because she was unable to renew the lease for her family’s in-district residence due to economic hardship. Petitioner contends that her daughter is, therefore, homeless within the meaning of McKinney-Vento because she is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason. Petitioner submits no documentation in support of her claim.

Respondent argues that the student is not homeless within the meaning of McKinney-Vento and, thus, is not entitled to attend the district’s schools.

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:

(i) sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii) abandoned in hospitals;

(iv) awaiting foster care placement; or

(v) a migratory child ... who qualifies as homeless under any of the provisions of clauses (i)through (iv) of this

1 Respondent did not submit any information regarding what the homeless liaison observed or found during the home visit. 3

subparagraph or subparagraph twoof this paragraph; or

(2) a child or youth who has a primarynight-time location that is:

(i) a supervised publicly or privately operated shelter designed to provide temporaryliving accommodations ...; or

(ii) a public or private place notdesigned for, or ordinarily usedas, 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 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882).

On the record before me, I find that petitioner’s daughter does not meet the definition of a homeless child under either State or federal law. According to the record, since approximately April 1, 2013, petitioner and her family have resided in her sister’s home outside the district. Furthermore, although the parties dispute whether petitioner’s sister’s home has two and a half or three bedrooms, it is undisputed that petitioner shares a bedroom with her daughter and that her son has his own bedroom. It is also undisputed that all of petitioner’s family’s belongings are in her sister’s home. In her petition, petitioner does not assert that this residence is inadequate and there is no evidence in the record on which to base such a conclusion. Thus, the record indicates that petitioner and her daughter have a fixed, regular night­time residence, and petitioner has not established that such residence is inadequate. While it is unfortunate that petitioner felt that she could not renew her lease for her in-district residence or find another affordable residence within the district due to the change in her employment and salary, and her decision to pay for her son’s private college tuition, there is no evidence in the record that her family’s chosen living arrangement with her sister is the type of temporary shelter or other accommodation 4

described in Education Law §3209. Thus, petitioner has failed to demonstrate that her daughter lacks a fixed, regular and adequate night-time residence and is homeless(see Appeal of D.S., 53 Ed Dept Rep, Decision No. 16,503;Appeals of T.C., 53 id., Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).

Moreover, although petitioner alleges that she is experiencing economic hardship, she has submitted no documentary evidence to substantiate these claims (see Appeal of a Student with a Disability, 49 Ed Dept Rep 77,Decision No. 15,963). At the hearing, the economic hardship she asserted as her reason for moving in with her sister was the reduction in her annual income to $140,000and her decision to pay her son’s tuition at a private college. While her reasons for moving may be financial, her decision appears to be based on personal choices rather than the type of economic hardship contemplated by McKinney-Vento.

Additionally, petitioner has not established that her current residence with her sister in Roslyn Heights is of a temporary or transitional nature. The petition includes only conclusory statements that petitioner’s current residence outside the district is temporary. The fact that petitioner asserts that her family intends to move back to the district at some point does not establish that her current residence is temporary or transitional within the meaning of Education Law §3209. To the contrary, the record indicates that petitioner and her family have been living in the out-of-district residence for almost five months, and there is no evidence of any attempt to relocate to respondent’s school district. Although petitioner indicated at the residency hearing that she was pursuing a rental arrangement at a friend’s in-district home, she makes no such claim in her petition and submits no evidence of any attempt to relocate. In addition, the record is devoid of any evidence that petitioner must vacate her current residence or that there is a time limit as to how long her family can reside there (see Appeals of L.B., 50Ed Dept Rep, Decision No. 16,129; Appeal of J.U., 50 id., Decision No. 16,095; Appeal of M.W., 46 id. 151, Decision No. 15,471). Accordingly, based on the record before me, I cannot find respondent’s determination that the student is not homeless to be arbitrary, capricious or unreasonable.

Although petitioner does not raise this issue, and it does not affect the outcome of this appeal, I am compelled to comment on respondent’s failure to date its final homeless determination letter. Pursuant to 8 NYCRR §275.16, 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. Where, as here, the final determination letter is undated, an individual adversely affected by such final determination will find it difficult to ascertain the date on which the time period for commencing an appeal to Commissioner will expire. Admonish respondent to immediately correct this practice to ensure that all such determinations are clearly dated.

Finally, I note that petitioner has the right to reapply for admission to respondent’s schools on her daughter’s behalf at any time, particularly if her living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE