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Decision No. 16,987

Appeal of S.R., on behalf of her child A.R., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Appeal of S.R., on behalf of her child M.S., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 16,987

(October 31, 2016)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

ELIA, Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that A.R. and M.S. (“the students”) are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools tuition-free or receive transportation.  Because these appeals present similar issues of fact and law, they are consolidated for decision.   The appeals must be dismissed.

The record indicates that petitioner’s in-district residence was damaged by Hurricane Sandy in October 2012. As a result of the damage sustained during the hurricane, petitioner and her children were forced to leave their home in June 2013.  Since June 2013, petitioner, along with her husband and three children have resided outside the district in a three-bedroom apartment with her husband’s cousin and one other adult.

The record further indicates that respondent considered the students homeless pursuant to McKinney-Vento and maintained their enrollment within its schools until June 2016.  By letter dated June 10, 2016 respondent’s director of pupil services notified petitioner that the students were no longer eligible for enrollment pursuant to McKinney-Vento because the out-of-district residence was no longer deemed temporary.  This determination notwithstanding, respondent permitted the students to complete the remainder of the 2015-2016 school year within its schools.  This appeal ensued.  Petitioner’s requests for interim relief were denied on July 6, 2016.

Petitioner claims that she and her children are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason, and are therefore homeless within the meaning of McKinney-Vento.  Specifically, petitioner asserts that they continue to reside with her husband’s cousin outside respondent’s district because they were forced to leave their in-district residence as a result of damage sustained from Hurricane Sandy in October 2012. Petitioner further claims that she is unable to find permanent housing due to economic hardship, and that she receives workers’ compensation benefits which are insufficient to support a move back into respondent’s district.

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.  Respondent claims that the family has been residing at the out-of-district address since June 2013 and that there is no evidence on the record that their living situation is inadequate.

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;[1] 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.[2]

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.  The record indicates that on June 17, 2016, with the permission of petitioner, respondent’s homeless liaison visited the out-of-district residence.  The liaison avers that the apartment has three bedrooms, one of which appeared to be used by petitioner’s three children, who each had their own bed.  Petitioner further indicated to the liaison that she shares the rental cost of the apartment equally with her husband’s cousin.  Based on this home visit, the homeless liaison concluded that there was no evidence that the residence was inadequate.  Similarly, petitioner offers no evidence on appeal to support a claim that the residence is inadequate (see Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812; Appeal of S.T., 53 id., Decision No. 16,619; Appeal of T.B., 48 id. 4, Decision No. 15,774).  While it is unfortunate that petitioner was forced to move from her in-district residence as a result of damage sustained during Hurricane Sandy in 2012, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate night-time residence and are homeless.

Moreover, petitioner has not established that her current residence is temporary or transitional.  The record indicates that petitioner and her children have been residing in the home of a family member outside the district’s geographic boundaries since June 2013, and it contains no evidence that they need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of A.N.Z., 53 id., 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).

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

THE APPEALS ARE DISMISSED.

END OF FILE

 

[1] Effective December 10, 2016, children or youth awaiting a foster care placement will no longer be included in the definition of homeless under the McKinney-Vento Homeless Assistance Act as amended by the Every Student Succeeds Act (42 U.S.C. §11432[g][3][E][i]; 42 U.S.C. §11432[g][4][A]).

 

[2] Effective October 1, 2016, the McKinney-Vento Homeless Assistance Act was amended by the Every Student Succeeds Act, (42 U.S.C. §11432[g][3][E][i]; 42 U.S.C. §11432[g][4][A]).  The circumstances which gave rise to this appeal occurred prior to October 1, 2016.  As a result, the requirements of McKinney-Vento and the conforming provisions of Education Law §3209 and Commissioner’s regulation §100.2(x) in effect prior to October 1, 2016, are applicable to this appeal.