Appeal of STUDENTS WITH DISABILITIES, by their parents, from action of the Board of Education of the Deer Park Union Free School District regarding residency and transportation.

Decision No. 16,826

(September 10, 2015)

Frazer & Feldman, LLP, attorneys for respondent, Joseph Lilly, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that their sons are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

On or about September 11, 2007, petitioners enrolled their children in respondent’s schools based upon an address located within the school district.  On two separate occasions in 2009, petitioners relocated within the district.  Apparently, at some point in mid-December 2013, petitioners were evicted from their in-district residence and relocated to a family member’s home outside the district.

According to respondent’s homeless liaison, on January 6, 2014, the students’ mother delivered a copy of a court order to his office which stayed, until January 12, 2014, a prior eviction order.  The liaison contacted the mother to inquire about her family’s current living situation.  The mother informed the liaison that she and her family were living at her sister’s home in Wyandanch, outside respondent’s district.  In response to the liaison’s questions, the mother indicated that the residence was a fixed location; there was adequate heat, hot water and electricity; and her children had an appropriate place to sleep.   At the conclusion of the conversation, the homeless liaison advised the mother that her children would be treated as homeless and would be permitted to attend the district’s schools for at least the remainder of the current school year.

On March 15, 2014, the homeless liaison again contacted the mother to inquire about the adequacy of her living arrangements.  The mother indicated that she continued to reside at the out-of-district residence, remained homeless and that “we have no issues.”

At the conclusion of the conversation, the homeless liaison explained to the mother that, should the out-of-district residence be deemed permanent, she would have to re-locate back into respondent’s school district in order for her children to continue to attend school there, as her family would no longer be considered homeless.

By letter dated June 27, 2014, the homeless liaison notified petitioners of his determination that they had a fixed, regular nighttime residence since December 2013, were no longer considered homeless and, therefore, their children were not eligible to attend district schools.

This appeal ensued.  Petitioners’ request for interim relief was granted on August 19, 2014.

Petitioners allege that their family is homeless within the meaning of McKinney-Vento.  Petitioners assert that they left their residence in respondent’s district because one of their children was injured at that residence, and the landlord failed to make necessary repairs.  Petitioners claim that they are sharing the housing of others due to loss of housing, economic hardship or similar reason. 

Respondent argues that petitioners are not homeless within the meaning of McKinney-Vento.

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 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).

Under the circumstances of this case, I find that the students do not fit the definition of homeless children under State or federal law.  According to the record, petitioners were evicted from their home in respondent’s district.  Although petitioners state in their petition that they left their home because one of their children was “electrocuted in the dwelling,” the record before me does not fully support petitioners’ assertion.  Petitioners submit a September 2013 doctor’s note that indicates that an “electrical injury” did occur at that time.  However, the record also indicates that petitioners remained in the home for several months, until at least mid-December 2013.  In addition, according to an affidavit by respondent’s homeless liaison, in early January 2014, petitioners provided the district with a copy of a court order staying an order of eviction obtained against petitioners until January 12, 2014.[1]  The liaison also avers that, in a telephone conversation with the students’ mother, she confirmed that she and her family had been evicted.  Petitioners submit no reply refuting that information or otherwise explaining this inconsistency.  On this record, I conclude that petitioners’ loss of housing was due to their being evicted from their residence in respondent’s district.

However, petitioners have produced insufficient evidence to establish that their children lack a fixed, regular and adequate nighttime residence or are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).  Petitioners assert in their petition that the “[a]dolescents are currently sleeping on the floor in the living room headquarters.”  However, other than that statement, petitioners submit no other evidence, such as affidavits or photographs, to support their assertion.  Moreover, respondent’s homeless liaison avers that, on January 6 and March 15, 2014, the students’ mother stated that their living situation was adequate and there were “no issues” with the family’s living arrangements.  According to the liaison, when asked if her children had an appropriate place to sleep at night, “like a bed,” the mother said “Yes.”

Respondent maintains that petitioners’ current living arrangement is adequate.  On July 29, 2014, following service of the petition herein upon respondent, the homeless liaison visited petitioners’ out-of-district residence.  Present were the students and their mother, her sister and her mother.  The homeless liaison avers that the residence is a split-level ranch-style house with adequate space in the upstairs with a kitchen, living room and three separate rooms which appeared to be bedrooms.  However, he did not observe the downstairs floor of the house.  In the living room, he observed two couches which, at that time, had pillows and blankets on them.  The students’ mother indicated that her children slept there; not on the floor.  Petitioners have submitted no reply or other evidence to refute respondent’s description.  Thus, petitioners’ statement in their petition is inconsistent with the mother’s statement to the homeless liaison.  Petitioners’ assertion that the students are required to sleep on the floor, thus, is not supported by the record.

In any event, even if petitioners’ children slept on couches on the date of the liaison’s visit, there is no evidence in the record that they are forced to do so due to, for example, overcrowded conditions or lack of a sufficient number of bedrooms or furniture in the home (cf. Appeal of R.W., 49 Ed Dept Rep 73, Decision No. 15,962).  The liaison observed three bedrooms on the upper floor of the split-level home but did not go downstairs to observe whether there were additional bedrooms on that level.  Petitioners provide no description at all of their out-of-district residence.  Other than their conclusory allegation that their children sleep on the floor, which is belied by respondent’s evidence, petitioners provide no information on which to determine the adequacy of their current home.

Petitioners have the burden of establishing facts sufficient to warrant the relief sought.  Here, the petition consists entirely of conclusory statements, and there is insufficient evidence in this record to conclude that their current housing is inadequate (see Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,621; Appeal of S.T., 53 id., Decision No. 16,619; Appeal of King, 53 id., Decision 16,522).

Accordingly, on this record, petitioners have failed to carry their burden of demonstrating that they and their children lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a) (see Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,621; Appeal of S.T., 53 id., Decision No. 16,619; Appeal of King, 53 id., Decision 16,522).

Additionally, petitioners have not established that their living arrangement is temporary or transitional.  The petition contains no statement by petitioners that the arrangement is temporary or transitional.  Although the students’ mother stated to the homeless liaison at the time of his visit that their living arrangement was temporary, she also stated that her family could stay as long as they needed to.   At the time of the appeal, petitioners and their children had been residing in the out-of-district home of their family member for seven months.  Petitioners have not established that the loss of their current housing is imminent or that there is a limit as to how long they and their children can reside there (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608).  Nor is there any evidence that petitioners are making any effort to return to respondent’s district.

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

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

THE APPEAL IS DISMISSED