Appeal of J.A., on behalf of his children B.A. and J.A., from action of the Board of Education of the William Floyd Union Free School District regarding residency and transportation.

Decision No. 16,785

(July 3, 2015)

Bond, Schoeneck & King, PLLC, attorneys for respondent, John A. Miller, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the William Floyd Union Free School District (“respondent”) that his 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 to receive transportation.  The appeal must be dismissed.

The record indicates that earlier in the 2014-2015 school year, petitioner resided with his children at an address within the district and the children attended the district’s schools.  In January 2015, respondent received information calling into question petitioner’s and his children’s status as legal residents of the district.  The record further indicates that the district’s attendance school social worker conducted a home visit on January 21, 2015 at the in-district address and, finding no one home, left a postcard requesting a telephone call. 

In a January 29, 2015 telephone conversation with the district’s homeless liaison-social worker (“homeless liaison”), petitioner explained that he and his children were no longer living in the district because he had lost his job and his house had gone into foreclosure.  Petitioner stated that he and his children were living at his girlfriend’s home in the Center Moriches Union Free School District.  In an affidavit, the homeless liaison avers that at this time, petitioner also informed her that his children share a room and sleep in bunk beds at his girlfriend’s home, that he was working again (although making less money) and contributing to the living expenses at his girlfriend’s home, and that his girlfriend’s landlord was aware that he and his children were occupying the home, although they had not been added to the existing lease.  The homeless liaison also avers that she explained to petitioner that although he and his children lost their housing in the district, their new residence is fixed, regular and adequate, and therefore does not meet the criteria under McKinney-Vento for his children to be eligible for transportation or continued enrollment in the district.  The record also indicates that on January 30, 2015, the district’s director of student services (“director”) confirmed with petitioner that he and his children were residing at his girlfriend’s home outside the district.       

By letter dated January 30, 2015, the director informed petitioner of her determination that petitioner and his children were no longer residents of the district and that, unless petitioner provided proof of residence in the district by February 13, 2015, his children would be removed from the rolls.  According to the record, on February 17, 2015, petitioner met with the director and respondent’s assistant superintendent for human resources (“assistant superintendent”) and confirmed the information he had earlier given the homeless liaison on January 29, 2015.  Petitioner also stated that he and his children had no plans to leave his girlfriend’s home.  The record also indicates that the director and the assistant superintendent explained to petitioner that his children could no longer continue attending school in the district because they had moved into another district, at which point petitioner claimed that he and his children were homeless.  By letter dated March 6, 2015, the assistant superintendent informed petitioner of respondent’s determination that he and his children are not homeless, as “there is no reason to believe that you and/or your children lack a fixed, regular and adequate nighttime residence” or “that the housing you and your children share with your girlfriend is temporary or transitional” but instead appears to have “become your permanent home.”  This appeal ensued.  Petitioner’s request for interim relief was granted on April 22, 2015.

Petitioner contends that his children are homeless within the meaning of McKinney-Vento and, therefore, entitled to attend respondent’s schools without payment of tuition and to receive transportation.  Respondent denies these contentions and requests that the petition be dismissed. 

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

(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).

Based on the record before me, I find that petitioner has not established that his children meet the definition of homeless children under either State or federal law.  Petitioner contends that he and his children are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.  In support of his argument, petitioner states that his family became homeless when their “[h]ome went into foreclosure” and was “[a]uctioned off.” He further describes the children’s current living arrangement as “[l]iving with father at girlfriend’s house which she rents and I offset the food expenses.”  However, the record indicates that petitioner’s children share a room and sleep in bunk beds at his girlfriend’s home and that her landlord knows that they are now residing there.  Petitioner has not proven that this residence is inadequate.  While it is unfortunate that petitioner and his children had to leave their district residence due to difficult economic circumstances, there is no evidence in the record that their living arrangements are the type of temporary shelter or other accommodation described in Education Law §3209 (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537).  Proof of economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652).    

Although the petition is unclear, to the extent that petitioner attempts to argue that his family’s living arrangements are temporary or transitional in nature because they are living at his “girlfriend’s house which she rents” and that he “offset[s] the food expenses,” respondent refutes that petitioner “only” offsets food expenses.  Respondent references the affidavit of the homeless liaison which includes statements made by petitioner in January and February 2015 that “he was working again, and although making less money, was contributing to the living expenses at his girlfriend’s home” and that he “was contributing financially to housing expenses at his girlfriend’s home.”  Further, the homeless liaison’s affidavit also contains a statement by petitioner that “he had no plans for leaving his girlfriend’s home” with his children.  Petitioner submits no exhibits or documentary evidence with his petition and submits no reply or other evidence to refute or further explain these statements.   

Based upon the record before me, petitioner has failed to demonstrate that his children currently lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other temporary living accommodations set forth in Education Law §3209.  Accordingly, I cannot find that respondent’s determination that petitioner’s children are not homeless was arbitrary or capricious.

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

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on his children’s behalf at any time and to submit any documentary evidence for respondent’s consideration.

 THE APPEAL IS DISMISSED.

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