Appeal of D.B., on behalf of her children, from action of the City School District of the City of Long Beach regarding residency and transportation.

Decision No. 17,041

(February 10, 2017)

Harris Beach, PLLC, attorneys for respondent, Susan E. Fine, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Long Beach (“respondent”) that her 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 receive transportation.  The appeal must be dismissed.

Petitioner’s children attended respondent’s schools during the 2013-2014 school year.  On September 2, 2014, petitioner contacted the district’s homeless liaison and stated that she had been evicted from her home and was staying with a friend at a residence located outside of the district’s geographic boundaries (the “out-of-district address”).  The homeless liaison allowed the students to continue attending respondent’s schools. 

The homeless liaison avers that it is her practice to contact McKinney-Vento eligible families “once or twice” per year to “check on their status.”  The homeless liaison explains that she did so with petitioner, and that, on each occasion, petitioner indicated that she and her children continued to reside at the out-of-district address.  According to the homeless liaison, petitioner did not indicate at any time that the out-of-district address was inadequate. 

According to the homeless liaison, one afternoon in March or April 2016, petitioner’s landlord picked up one of the students from school.[1]  On April 18, 2016, the landlord told the homeless liaison that petitioner paid him rent each month to live in the front portion of his house (i.e., the out-of-district address).  The homeless liaison subsequently contacted petitioner, who confirmed that she paid the landlord rent to live at the out-of-district address.

The homeless liaison “follow[ed]” up with petitioner by telephone and explained to her that the out-of-district address seemed to be permanent and that she could no longer be considered homeless.  The homeless liaison advised petitioner to enroll her children in the school district which served the out-of-district address (the “neighboring district”) for the 2016-2017 school year. 

In the spring of 2016, a Child Protective Services (“CPS”) worker opened a case regarding petitioner.  The homeless liaison avers that the CPS caseworker confirmed in a conversation with a district social worker that petitioner and her children lived in the front portion of the out-of-district address and that the house appeared adequate “to meet the family’s needs.” 

Prior to the beginning of the 2016-2017 school year, petitioner told the homeless liaison that she would enroll her children in the neighboring district.  Based on this representation, the homeless liaison did not prepare or transmit a letter to petitioner indicating that her children would be excluded from respondent’s schools. The homeless liaison also states that she left at least two telephone messages offering petitioner assistance in registering her children in the neighboring district.

In September 2016, on the first day of the 2016-2017 school year, petitioner contacted the homeless liaison and asked why the district had not provided transportation for her children to respondent’s schools.  The homeless liaison subsequently re-enrolled petitioner’s children in the district and arranged for transportation. 

By letter dated September 12, 2016 the district’s superintendent informed petitioner of his determination that the out-of-district address was fixed, regular and adequate, and that petitioner’s children were not considered homeless pursuant to McKinney-Vento.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 28, 2016.

Petitioner contends that she and her children are homeless within the meaning of McKinney-Vento because they share the housing of another person due to economic hardship or similar reason.  Petitioner states that she was evicted from her prior residence and that she and/or her children sleep on a sofa and blow-up bed at the out-of-district address.  Petitioner further asserts that she does not pay rent.

Respondent asserts that petitioner fails to demonstrate a clear legal right to the relief requested or that respondent’s actions were arbitrary, capricious or an abuse of discretion.  Respondent maintains that petitioner and her children are not homeless within the meaning of McKinney-Vento.

First, I must address a procedural matter.  Respondent argues that the appeal must be dismissed because the petition incorrectly identifies the name of respondent’s district as well as, in one section of the petition, the names of the students.  However, petitioner is appearing pro se, and respondent was not prejudiced as it was able to respond to the allegations in the petition.  A liberal interpretation of the Commissioner's regulations is appropriate where the petitioner is pro se and there is no prejudice to respondent (Appeal of Khan, 51 Ed Dept Rep, Decision No. 16,287; Appeal of Metze, 42 id. 40, Decision No. 14,768; Appeal of Smith, 40 id. 172, Decision No. 14,452).  Therefore, I decline to dismiss the petition under these circumstances.

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;[2] 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.[3]

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’s children do not meet the definition of homeless children under either State of federal law.
Petitioner has produced no evidence that she and her
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).  Petitioner states that she is staying with a friend due to economic hardship or similar reason and that she and her children sleep on a sofa and blow-up bed; however, she produces no evidence to support her claims.  Without proof, petitioner’s conclusory statements are insufficient to meet her burden of proof on this issue (see Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804; Appeal of a Student with a Disability, 53 id., Decision No. 16,621).

Additionally, petitioner has not established that her living arrangement is temporary or transitional.  At the time petitioner initiated this appeal, she and her children had resided at the out-of-district address for over two years.  Petitioner has not established that the loss of her current housing is imminent or that there is a limit as to how long she and her children can reside there (see Appeal 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 No. 16,404).

Accordingly, on this record, petitioner has failed to carry her burden of demonstrating that she and her 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).

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for her children’s admission to respondent’s schools at any time, should their situation change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE