Decision No. 17,104
Appeal of S.L., on behalf of her daughter A.M., from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.
Decision No. 17,104
(June 21, 2017)
Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mamaroneck Union Free School District (“respondent”) that her daughter, A.M., is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools. The appeal must be dismissed.
Prior to the events described in this appeal, petitioner and A.M. resided in Mamaroneck, New York in the district (the “in-district address”). During the 2016-2017 school year, A.M. attended the sixth grade in respondent’s schools. According to petitioner, on or about October 20, 2016, she and A.M. left their home in the district where they had resided with petitioner’s now ex-boyfriend and his family; the residence belonged to petitioner’s ex-boyfriend’s family. Petitioner states that she and her daughter “became homeless due to the fact that [she] felt [she] needed to leave the residence for the well-being of [her] child and [her]self;” that “[i]t was no longer a place [they] felt comfortable;” and that “[she] had no choice but to find somewhere [they] could stay temporarily.” Petitioner indicates that “[a]fter [they] left [their] home, leaving most of [their] belongings behind” that “[she and A.M.] stayed at several places for short periods of time between [her] family and friends” between October 20 and December 29, 2016, including her parents’ house in Mamaroneck located outside the district (the “out-of-district address”).
On November 3, 2016, petitioner was referred to the district’s homeless liaison after she informed A.M.’s guidance counselor and a school social worker of their living situation. According to an affidavit submitted by respondent’s assistant superintendent for business (“assistant superintendent”), the district’s homeless liaison spoke with petitioner on November 29, December 2, and December 6, 2016, and petitioner reported that “she had ‘split-up’ with her boyfriend” and that she and A.M. were residing outside the district “with her parents” as “she ‘needed some space’ ... while she was ‘trying to work things out’ with her partner.”
By letter dated February 2, 2017, the assistant superintendent informed petitioner that she had “reason to believe that you and your child, [A.M.] do not live in the [district]” and that “[t]his determination is based on the following fact: surveillance has documented that you and [A.M.] are permanently residing at [the out-of-district address] and not [the in-district address].” The assistant superintendent’s letter further stated that A.M would be excluded from respondent’s schools on February 15, 2017 but offered petitioner the opportunity to attend an informal conference on February 8, 2017 “to discuss the factual basis for [the assistant superintendent’s] conclusion.”
Petitioner met with the assistant superintendent on February 8, 2017 and states that she “voiced [her] concern for [her] daughter[’s] education and having nowhere else to go but to family and friends” and that she “could not find [affordable] housing that fast” and “needed time.” The assistant superintendent by contrast, avers that petitioner “never asserted that she had ‘nowhere to go’ nor did she indicate that [the out-of-district address] was short-term.” The assistant superintendent avers that petitioner explained that she was living with her parents “while she saved money to rent a home in the [d]istrict” and that she had not yet found an apartment in the district.
The assistant superintendent further states in her affidavit that “[a]t no time” during the February 8, 2017 conversation with petitioner “did [p]etitioner advise that her current living situation was inadequate or temporary.” By letter dated February 14, 2017, the assistant superintendent informed petitioner of her determination that petitioner and A.M. did not reside within respondent’s district and, therefore, A.M. would be excluded as a nonresident, effective February 28, 2017.
Shortly thereafter, the assistant superintendent received a call from the New York State Technical and Education Assistance Center for Homeless Students (“NYS-TEACHS”) advising her that petitioner was asserting that she was homeless.
In a letter to petitioner dated February 28, 2017, the assistant superintendent stated that she had learned that petitioner “believe[d] [she was] homeless within the meaning of McKinney-Vento.” The assistant superintendent further stated in this letter that petitioner did not “substantiate” this claim and that the district “d[id] not believe” petitioner was homeless as defined by McKinney-Vento. This appeal ensued.
Petitioner contends that her daughter is homeless within the meaning of McKinney-Vento and, therefore, entitled to attend respondent’s schools without payment of tuition. Respondent denies these contentions and requests that the appeal be dismissed.
At all times relevant to this appeal, Education Law §3209(1)(a) defined “homeless child” as:
(1)a child or youth who lacks a fixed, regular, and adequate nighttime 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 ...
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 has not established that her daughter meets the definition of a homeless child under either State or federal law. Although not entirely clear, it appears that petitioner contends that she and her daughter are homeless because they lack a fixed, regular and adequate nighttime residence and are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason. In support of her petition, petitioner explains that she had “no choice” but to leave her ex-boyfriend’s family’s home and stay with family and friends temporarily. Petitioner submits a letter with her petition dated March 5, 2017 signed by her ex-boyfriend’s mother which states that “[petitioner] and [her] son were in a relationship for the past seven years” and lived in her family home for over six years. She also states that:
During 2016, there [were] some difficulties in their relationship. It was not a healthy relationship for anyone. They finally decided to go their separate ways in October, 2016. As the house belongs to my family, she felt it best to remove herself and [A.M.]. This letter shall also serve as a formal [e]viction [l]etter.
However, petitioner also states that after she and A.M. left the in-district address and came to be at the out-of-district address, her “three other sisters were living at [her] parents[’] house and it was a little cramped,” but that after approximately December 29, 2016, “when one of [her] sisters moved out to be closer to her job[,] [she and A.M.] were finally able to sleep comfortably in a bed and not on couches.” The assistant superintendent also avers that, “upon information and belief, the residence at [the out-of-district address] is a three (3) bedroom one (1) bath home and [p]etitioner occupies at least one (1) of those bedrooms.”
Beyond the statement that her parents’ home was “a little cramped” prior to December 29, 2016, petitioner does not assert, nor is there evidence in the record, that the out-of-district address is inadequate. While it is unfortunate that petitioner and her daughter experienced a situation in which petitioner felt she had no choice but to leave the in-district residence without having secured other permanent housing, there is no evidence in the record that their living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209 (see Appeal of R.D., 56 Ed Dept Rep, Decision No. 16,945; Appeal of R.T.-G., 56 id., Decision No. 16,942; Appeal of A.N.Z., 53 id., Decision No. 16,537).
In addition, to the extent that petitioner claims that she and A.M. are sharing the home of petitioner’s parents as a result of economic hardship, respondent contends that petitioner “has a full-time job working for the Town of Mamaroneck ... [and] does not allege that she cannot afford to rent an apartment within the [d]istrict” but rather states that doing so would not “leave [her] with much else for other bills ....” Petitioner also states that she is working with a realtor to find affordable housing in the district and submits a letter from a realtor which states that “[t]he going rate ... for a one bedroom starts at approximately $1,600.” While I acknowledge that this situation may present a financial hardship for petitioner, proof of economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of R.T.-G., 56 Ed Dept Rep, Decision No. 16,942; Appeal of J.A., 55 id., Decision No. 16,785).
Petitioner has also failed to establish that her and A.M.’s current residence is temporary or transitional. Although petitioner argues that their living arrangements are temporary or transitional in nature because they stayed at several places with family and friends for short periods of time after leaving the in-district address, the record indicates that they now reside with petitioner’s parents where they have their own room. Moreover, the assistant superintendent disputes this allegation, stating that “[a]t no time did [p]etitioner ever advise the [d]istrict that she resided in several locations prior to moving into [the out-of-district address].”
To the extent that petitioner asserts that she is looking for affordable housing in the district and that she and A.M. intend to move back to the district at some point, this does not establish that their current residence is temporary or transitional within the meaning of Education Law §3209 (Appeal of E.R., 53 Ed Dept Rep, Decision No. 16,560; Appeal of E.M.F., 53 id., Decision No. 16,538; Appeal of a Student with a Disability, 52 id., Decision No. 16,404). In addition, there is no evidence that petitioner needs to vacate her current residence or that there is a time limit as to how long she and A.M. can reside there (Appeal of R.T.-G., 56 Ed Dept Rep, Decision No. 16,942; Appeals of L.B., 50 id., Decision No. 16,129. Therefore, on this record, petitioner has not met her burden of proof on this issue.
Accordingly, based on the record before me, I cannot conclude that respondent’s determination that petitioner’s daughter is not homeless is arbitrary, capricious or unreasonable.
In light of this disposition, I need not consider the parties’ remaining contentions.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on her daughter’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The assistant superintendent states that she is “charged with, among other things, overseeing residency in the [d]istrict, including claims of homelessness.”
 Effective October 1, 2016, §11432(g)(3)(E)(i) of the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, now requires that if a dispute arises surrounding a student’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 USC §11432[g][E][i]). Therefore, no application for a stay in this appeal was necessary.
 Petitioner states that A.M. does not receive transportation services to and from school, as petitioner drives her to school and A.M. is picked up from school by a friend.
 Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (42 USC §11434a). Effective April 20, 2017, children or youth awaiting foster care placement are no longer included in the definition of “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017. However, those changes are not relevant to a determination in this appeal.
 This letter post-dates respondent’s exclusion of A.M. from school.