Appeal of Z.P. and D.P., on behalf of their children D.P. and D.P., from action of the Valley Stream Union Free School District No. 30 regarding residency and transportation.

Decision No. 16,639

(August 7, 2014)

Keane and Beane, P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Valley Stream Union Free School District No. 30 (“respondent”) that their children 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 in 2010 and 2011, petitioners enrolled their children in respondent’s schools using an in-district address.  Subsequently, the district superintendent had suspicions about petitioners’ residency and hired a private investigator to conduct an investigation.  The investigation revealed that petitioners and their children resided in an apartment rented by petitioners outside the district (“out-of-district apartment).  As a consequence, petitioners were notified that their children were not district residents and were not entitled to attend district schools.  Petitioners were given a period of time to submit evidence in support of their residency but failed to do so and the superintendent issued a final determination of non-residency.

Subsequently, in response to the superintendent’s non-residency determination, petitioners asserted for the first time that they were homeless.  Consequently, the superintendent requested that petitioners meet to discuss their living situation.  Prior to this meeting, the superintendent learned that petitioners were tenants paying rent pursuant to a lease agreement at the out-of-district apartment.  At the meeting, petitioners indicated that the landlord of their in-district residence was suing them, allegedly for breaking their lease.  According to respondent, petitioner Z.D. also stated at the meeting that the family was living with her aunt at a different residence outside the district and admitted that she knew that she and her family were not residing within the district.

Following this meeting, the superintendent concluded that there was no evidence that petitioners and their children did not have a fixed, regular or adequate nighttime residence or that their living accommodations were temporary.  As a result, the superintendent issued a final determination that petitioners’ children were not entitled to attend district schools.

This appeal ensued and petitioners’ request for interim relief was denied.

In the petition, petitioners allege that they were improperly evicted from their in-district residence for non-payment of rent and that they currently reside outside the district with D.P.’s brother, due to loss of housing, economic hardship or a similar reason.  Petitioners object to their eviction and allege that they did not receive court documents relating thereto.  In a statement attached to the petition, D.P.’s brother states that petitioners and their children will be residing with him only temporarily.

Respondent maintains that petitioners reside at the out-of-district apartment and are not homeless within the meaning of McKinney-Vento.

Initially, I note that no appeal was made from the superintendent’s residency determination.  Therefore, my review in this matter is limited only to petitioners’ claim of homelessness.

Education Law §3209(1)(a) defines 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 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

(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., 48 id. 348, Decision No. 15,882).

Petitioners’ children do not fit the definition of homeless children under either State or federal law.  They have a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate.  While it is unfortunate that petitioners were evicted from their in-district residence, there is no proof in the record that they live in the kind of shelter or other accommodation described in Education Law §3209.  Thus, petitioners have failed to demonstrate that their children lack a fixed, regular and adequate night-time residence and are homeless (see Appeal of T.C., 53 Ed Dept Rep, Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Nor have petitioners established that their current residence is temporary or transitional.  In this regard, petitioners submit only an unsworn letter from petitioner D.P.’s brother stating that petitioners are staying with him “temporarily” and are “currently looking to establish permanent housing here in the Valley Stream area.”  The record contains no evidence that petitioners need to vacate their current residence or that there is a time limit as to how long they can reside there (Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129). 

Finally, I note that, although respondent’s residency determination is not at issue in this appeal, the record contains an affidavit from respondent’s investigator in which he avers that, during his September 2011 residency investigation, he observed petitioners and their children at the out-of-district apartment.  The investigator also avers that he spoke to the owner of the two-family home in which the apartment is located, who stated that petitioners are tenants at that address and pay monthly rent pursuant to a lease agreement.

Accordingly, based on the record before me, I cannot find respondent’s determination that petitioners’ children are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioners retain the right to reapply for admission to respondent’s schools on their 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.

THE APPEAL IS DISMISSED.

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