Appeal of R.D., on behalf of her children J.W., J.W., and J.W., from action of the Board of Education of the Deer Park Union Free School District regarding residency and transportation.

Decision No. 16,945

(August 11, 2016)

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

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that J.W., J.W., and J.W. (“the students”) 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 tuition-free or receive transportation.  The appeal must be dismissed.

The record indicates that petitioner and the students resided within respondent’s district until approximately February 2015, when petitioner disclosed to the district that they relocated to an out-of-district residence because they were evicted and had “no other place to live.”  According to respondent, it thereafter determined that the students were homeless and agreed to allow them to attend respondent’s schools tuition-free and receive transportation based on petitioner’s statement to the district’s homeless liaison that she left her in-district residence because “it wasn’t a good situation” and that she and the students relocated to the out-of-district residence because they had “no other place to live.”

The record indicates that on March 5, 2015, respondent’s homeless liaison visited the out-of-district residence and noted that the residence appeared to be well kept and spacious.  Thereafter, the homeless liaison followed-up with petitioner by telephone, whereupon petitioner confirmed that the family was still residing in the residence.  In this telephone conversation, petitioner asserted that the living conditions were adequate and that the children had their own sleeping spaces.  The record further indicates that the homeless liaison conducted several more follow-up conversations with petitioner in April, June, August, and October 2015, wherein petitioner indicated that the living conditions continued to be adequate, that the children had their own sleeping spaces, and that she had no immediate intentions to seek permanent housing within the district. 

Apparently, in or about December 2015, respondent determined that, because almost one year had passed since petitioner and the students moved to the out-of-district residence and the residence was deemed adequate, the students would no longer be deemed homeless within the meaning of McKinney-Vento.

By letter dated December 18, 2015, respondent’s homeless liaison notified petitioner that the students were no longer considered homeless and that they would no longer be permitted to attend district schools effective January 18, 2016.  Subsequent to her receipt of the letter, petitioner informed the homeless liaison that her aunt, who owns the out-of-district residence, ceased making mortgage payments on the residence in May 2015, the residence was currently in foreclosure, and as such petitioner and her children may have to vacate the home “any day.”   

Petitioner appealed the determination of the homeless liaison to respondent board of education.  By letter dated January 27, 2016, respondent denied such appeal and determined that the students were no longer homeless and would be excluded from school, beginning on January 31, 2016.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 2, 2016.

Petitioner claims that her residence is not fixed, due to the fact that the property is under foreclosure and that she and her children could be forced to vacate the home at any time.  Petitioner further asserts that if and when she is forced to vacate, her family will be “forced” to move into a homeless shelter.

Respondent contends that petitioner has failed to state a claim upon which relief may be granted, and has not established that the students lack a fixed, regular, and adequate night-time residence and therefore, are not homeless under McKinney-Vento.  Respondent maintains that neither petitioner nor the students reside within the district and that they are no longer homeless within the meaning of McKinney-Vento.

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 nighttime 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).

On this record, the students do not meet the definition of homeless children under either State or federal law.  They have a fixed, regular night-time residence with their mother and there is no evidence in the record, nor does petitioner allege, that such residence is inadequate.  In fact, petitioner asserts that she and the children “live alone” in the house, that it has necessary and adequate utilities, and that each child has his or her own bedroom.  While it is unfortunate that petitioner was forced to move from her in-district residence, there is no proof in the record that she currently lives in the kind of shelter or other accommodation described in Education Law §3209.  For these reasons, and as set forth below, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate night-time residence and are homeless (see Appeals 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).

Petitioner has also not established that her current residence is temporary or transitional.  The record indicates that petitioner and her children have been residing in her aunt’s home outside the district’s geographic boundaries since February 2015 and it contains no evidence that petitioner needs to vacate her current residence or that there is a fixed time limit as to how long she may remain (Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Petitioner indicates that the homeowner stopped making mortgage payments in May 2015 and that, as a result, the home is in foreclosure.  Petitioner merely makes conclusory statements indicating that the property is under foreclosure proceedings, but fails to provide any evidence to support such claim.  Moreover, even assuming arguendo that the property is in foreclosure, I have previously held that the mere threat of eviction due to foreclosure without a specific date as to when the premises must be vacated is insufficient to establish that a residence is temporary or transitional for purposes of a homelessness determination (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608).

Petitioner further asserts that she does not know how long she and the students may continue to reside in the home.  These statements alone do not demonstrate that petitioner and the students will lose their housing imminently or at any particular time in the near future. (see Appeals of M.S., 55 Ed Dept Rep, Decision No. 16,792; Appeal of A.W., 53 id., Decision No. 16,559). 

Based upon the record before me, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a).  Accordingly, I cannot find that respondent’s determination that the students are not homeless was arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to re-apply for admission on behalf of her children at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.  

THE APPEAL IS DISMISSED.

END OF FILE