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Decision No. 16,560

 

 Appeal of E.R., on behalf of his children, A.R., K.R. and A.R., from the action of the Board of Education of the Amagansett Union Free School District regarding residency and transportation.

Decision No. 16,560

(October 4, 2013)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H.McCarthy, Esq., of counsel

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

The record indicates that, at the start of the 2011­2012 school year, petitioner resided within respondent’s district, where his children attended school. On or about April 20, 2012, petitioner informed the district that he and his children had been evicted from their district residence and that they were homeless. Petitioner further advised the district that he and his children would be temporarily residing with the children’s maternal grandparents in Wainscott, New York, outside the district. Based on petitioner’s claims of homelessness, the district continued his children’s enrollment in its schools and provided them with transportation.

Subsequently, on July 30, 2012, petitioner’s wife and the children’s mother, M.B., met with respondent’s superintendent regarding her prior request for copies of the children’s report cards for the last quarter of the2011-2012 school year. According to respondent, during this meeting, M.B. asked the superintendent how her children would be entitled to attend the district’s schools during the 2012-2013 school year since they were residing in Wainscott. The superintendent informed M.B. that the children were entitled to attend the district’s schools for

the 2012-2013 school year, based on petitioner’s claims that the children were homeless. According to respondent, this information made M.B. visibly upset and she advised the superintendent that she was unaware of the fact that petitioner had reported the children as being homeless to the district.

On August 6, 2012, M.B. met with respondent’s district clerk to review and copy the children’s educational records. During this meeting, M.B. advised the district clerk that the children were “neither homeless nor displaced” and that they “permanently” resided with her and their maternal grandparents in Wainscott. At the conclusion of this meeting, M.B. provided the district clerk with a handwritten letter, dated August 6, 2012,which reiterated the above-referenced information.

By letter dated August 21, 2012, which was mailed and hand-delivered to the Wainscott residence and addressed to both petitioner and M.B., the superintendent advised both of them that a determination had been made that their children were neither district residents nor homeless and that they would be excluded from the district’s schools effective September 21, 2012. The letter stated that the basis for this determination was M.B.’s August 6, 2012letter to the district, in which she stated that the children were not homeless because they permanently resided at the Wainscott address with her. This appeal ensued. Petitioner’s request for interim relief was denied on September 26, 2012.

Petitioner contends that his children are homeless within the meaning of McKinney-Vento because they are sharing the housing of other persons due to loss of housing, economic hardship or a similar reason. Petitioner further alleges that he and M.B. have been separated for over four years and that they have not lived together during this time period. Petitioner maintains that he has physical custody of the children and that M.B. resides in Jersey City, New Jersey, not at the Wainscott address. Petitioner also asserts that M.B.’s August 6, 2012 letter to the district stating that the children were not homeless was and is inaccurate and that it was submitted to the district while he was traveling and without notice to him. Petitioner contends that the children continue to be homeless because they and he are still temporarily residing with their maternal grandparents in Wainscott, while he 2

allegedly continues to search for affordable permanent housing in the district.

To substantiate his claims, petitioner submits, inter alia, copies of an eviction notice and a hold over warrant. However, it should be noted that petitioner has not submitted any documentation in support of his claims that he and M.B. are separated, that M.B. does not reside at the Wainscott address, that he has physical custody of the children and that he is searching for affordable permanent housing in the district.

Respondent contends that petitioner’s children are not homeless within the meaning of McKinney-Vento. Respondent further asserts in its memorandum of law that it recently received information that petitioner and his children may have moved to New York, New York. However, respondent has not submitted this alleged information for consideration in this appeal.

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 anyof 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:

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

3

 

(ii) 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 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 children do not meet the definition of homeless children under either State or federal law. According to the petition, since April 2012, petitioner and his children have resided in the children’s maternal grandparents’ home outside the district. Petitioner does not assert that the residence is inadequate and there is no evidence in the record that it is inadequate. Thus, the record indicates that petitioner and his children have a fixed, regular night-time residence and petitioner has not established that such residence is inadequate. While it is unfortunate that petitioner and his children were evicted from their district residence, there is no evidence in the record that their living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209. Thus, petitioner has failed to demonstrate that his children lack a fixed, regular and adequate night-time residence and are homeless (see Appeals of L.B., 50 Ed Dept Rep, Decision No. 16,129; Appeals of P.R., 48 id. 24,Decision No. 15,781; Appeal of S.D., 47 id. 44, Decision No. 15,620).

Additionally, petitioner has not established that his current residence with his children’s maternal grandparents in Wainscott is of a temporary or transitional nature. The petition only contains conclusory statements by petitioner that his current residence is temporary. The fact that petitioner asserts that his family intends to move back to the district at some point does not establish that his current residence is temporary or transitional within the meaning of Education Law §3209. To the contrary, the record shows that petitioner and his family have been 4

living in the children’s maternal grandparents’ residence for approximately 10 months, and there is no evidence of an attempt to relocate to respondent’s school district. In addition, there is no evidence that petitioner needs to vacate his current residence or that there is a time limit as to how long his family can reside there (Appeals of L.B., 50 Ed 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 petitioner’s children are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner has the right to reapply for admission to respondent’s schools on his children’s behalf at any time, particularly if their living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.

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

THE APPEAL IS DISMISSED. END OF FILE