Decision No. 17,038
Appeal of V.C.B., on behalf of her child J.B., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding residency and transportation.
Appeal of V.C.B., on behalf of her child D.B., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding residency and transportation.
Decision No. 17,038
(February 8, 2017)
Ingerman Smith, LLP, attorneys for respondent, Diana M. Cannino, Esq., of counsel
ELIA, Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Bayport-Blue Point Union Free School District (“respondent”) that J.B. and D.B. (“the students”) are not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”). Because the appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.
The record indicates that J.B. was enrolled in respondent’s district in or about September 2011, and D.B. was enrolled in or about March 2015. When both students were registered, they resided at an address in Bayport, New York (the “in-district address”). On or about August 4, 2015, while picking one of the students up from a summer program, one of the students’ parents stated that the family no longer resided at the in-district address and had moved into temporary housing.
On or about August 5, 2015, the students’ father met with the district’s administrator for pupil personnel services and homeless liaison (“homeless liaison”). The students’ father told the homeless liaison that “the family” had moved to temporary housing in Patchogue, New York, which is located outside of respondent’s district (the “out-of-district address”). The homeless liaison subsequently determined that the students were homeless and allowed them to remain enrolled in respondent’s schools.
In or about April 2016, the homeless liaison attempted to contact petitioner regarding the students’ homeless status. The homeless liaison was unable to reach petitioner, but spoke with a school psychologist at the students’ school who confirmed that the students continued to reside at the out-of-district address.
On May 18, 2016, the homeless liaison sent a letter informing petitioner and the students’ father of her determination that the students were not homeless and did not reside within respondent’s district. The letter stated that the students would be excluded from respondent’s schools as of June 24, 2016. The letter also indicated that petitioner and the students’ father could submit documentary evidence and meet with the homeless liaison “before June 10, 2016.”
On June 9, 2016, petitioner met with the homeless liaison and stated that she and the students continued to live at the out-of-district address. Petitioner further indicated that the house had four bedrooms, one bathroom, a working kitchen, running water, and functional electricity. Petitioner explained that she hoped to move to a location within respondent’s district, but had been unable to find a residence which she could afford. After considering this information, the homeless liaison informed petitioner of her determination that the students no longer resided in temporary housing and, therefore, would be excluded from respondent’s schools after the conclusion of the 2015-2016 school year. This appeal ensued. Petitioner’s request for interim relief was denied on July 18, 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. Petitioner further asserts that she and the students live with the students’ uncle and five other adults. Petitioner requests a finding that the students are homeless and, thus, entitled to attend respondent’s schools tuition-free.
Respondent contends that the appeal must be dismissed as untimely. Respondent further argues that petitioner has
failed to state a claim upon which relief may be granted. Respondent additionally asserts that petitioner and the students are not homeless because they have a fixed, regular and adequate night-time residence which is not temporary or transitional. Finally, respondent contends that petitioner’s intent to reside within respondent’s district is insufficient to establish residency.
First, I must address a procedural issue. Respondent contends that the appeal is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).
Respondent’s argument is without merit. Here, the May 18, 2016 letter sent by the homeless liaison invited petitioner to present “documentary proof and meet with the [homeless liaison] to establish that [her] family ... resid[ed] within the boundaries” of respondent’s district “before June 10, 2016.” At the conclusion of such a conference, “a final determination ... w[ould] be rendered in regard to [petitioner’s] family’s residency status.” Petitioner met with the homeless liaison on June 9, 2016. On the same day, the homeless liaison rendered a final determination that the students did not reside within respondent’s district. Petitioner’s service of the petition on June 23, 2016 was less than 30 days from respondent’s final determination, and, thus, was timely.
Nevertheless, the appeal must be dismissed on the merits. 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).
Here, petitioner has failed to meet her burden to show that the students are homeless under State or federal law. In the petition, petitioner asserts that she experienced “numerous disagreements with ... previous landlords” at the in-district residence, and that “[e]ventually, the family decided it would be better to move.” Petitioner does not explain, and the record does not show, how this constitutes a loss of housing, economic hardship or a similar reason. Therefore, petitioner’s allegation that she and her family “decided it would be better to move” does not establish that she and the students became homeless, and the petition must be dismissed on this basis.
In addition, petitioner offers no evidence on appeal to support such claim other than her assertion that several other adults reside at the out-of-district residence. The record indicates that petitioner and the students share a four-bedroom home with the students’ uncle and five other adults and that the house contains one bathroom, a working kitchen, running water, and functional electricity. While it is conceivable that petitioner could make a case that the house is inadequate due to overcrowding, petitioner has not provided sufficient evidence to support such a claim (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). It is unfortunate that petitioner chose to move from her in-district residence as a result of a dispute with her former landlord; however, 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 August 2015, 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 Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404).
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
 The homeless liaison sent copies of this letter in English and Spanish.
 This determination notwithstanding, the record reflects that respondent allowed one of petitioner’s sons to attend a summer program during the pendency of this appeal.
 Effective December 10, 2016, children or youth awaiting a foster care placement will no longer be considered homeless within the definition of the McKinney-Vento Homeless Assistance Act as amended by the Every Student Succeeds Act (42 U.S.C. §11432[g][E][i]; 42 U.S.C. §11432[g][A]).
 Effective October 1, 2016, the McKinney-Vento Homeless Assistance Act was amended by the Every Student Succeeds Act (42 U.S.C. §11432[g][E][i]; 42 U.S.C. §11432[g][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.
 In this respect, I note that 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; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).
 Because petitioner admits that she and the students reside at the out-of-district address, it is unnecessary to address respondent’s argument concerning petitioner’s intent to establish residency within respondent’s district.