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Decision No. 17,115

Appeal of J.B., on behalf of his children, from action of the Board of Education of the Phelps-Clifton Springs Central School District regarding residency and transportation.

Decision No. 17,115

(June 30, 2017)

Ferrara Fiorenza PC, attorneys for respondent, Colleen W. Heinrich, Esq., of counsel

Berlin, Acting Commissioner.--Petitioner challenges the determination of the Board of Education of the Phelps-Clifton Springs Central School District (“respondent”) that his children (the “students”) are not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The students were enrolled in respondent’s district on or about August 27, 2012.  On or about December 19, 2015, petitioner informed the district that he had moved to his mother’s house in Farmington, New York (the “Farmington address”), which is located in the Victor Central School District, due to “relationship issues.”  Petitioner further indicated that his mother resided at the Farmington address and that the family would be sharing the house with her.  Respondent subsequently deemed the students homeless and allowed them to continue to attend its schools.

In spring 2016, a bus driver informed the district’s homeless liaison that, contrary to petitioner’s assertions, petitioner and the students lived alone at the Farmington address.  The homeless liaison attempted to contact petitioner in July and August 2016, but petitioner “was not responsive.”[1]

The record indicates that, in early September 2016, petitioner informed the homeless liaison that he and the students continued to reside at the Farmington address.  Petitioner indicated that his mother resided in Florida for several months each year but otherwise resided at the Farmington address.[2]  Petitioner further indicated that he financially contributes to the household and that he planned to return to the district, but stated that he had not made efforts to do so since December 2015. 

On an unspecified date, the homeless liaison spoke with petitioner’s mother, who stated that she spends six months of each year in Florida.

In a letter dated September 23, 2016, respondent’s superintendent informed petitioner of her determination that the students were not homeless and, accordingly, not entitled to attend respondent’s schools tuition-free.  This appeal ensued.

Petitioner alleges that he and the students are currently homeless as defined by McKinney-Vento because the students are “[l]iving with their father and grandmother in [their] grandmother’s home.”  Petitioner further asserts that he is a “current student and single father” and that he and the students became homeless due to “an unheathy [sic] living environment and financial hardships.”  Petitioner requests a finding that the students are homeless and, thus, entitled to attend respondent’s schools tuition-free and receive transportation.

Respondent contends that petitioner has failed to demonstrate that he and the students are homeless within the meaning of McKinney-Vento.  Respondent specifically argues that petitioner has failed to prove that the Farmington address is inadequate, temporary or transitional.

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;[3] 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). 

Here, petitioner has failed to meet his burden of proving that the students are homeless under State or federal law.  Although petitioner indicates that he is a “current student and single father” and that he left the in-district residence due to “relationship issues,” an unhealthy living environment and “financial hardships,” there is no evidence in the record explaining these vague and conclusory statements.[4]  Therefore, petitioner has not shown that they are sharing the housing of others due to a loss of housing, economic hardship or a similar reason which would render the students homeless within the meaning of McKinney-Vento and State law (see Appeals of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeal of E.M.F., 53 id., Decision No. 16,538).

Petitioner has also failed to demonstrate that the students lack a fixed, regular and adequate nighttime residence.  The record shows that the students have resided at the Farmington address since December 2015.  The record contains no further evidence about the Farmington address, and petitioner does not allege that it is inadequate.  Therefore, on this record, petitioner has not met his burden of proving that the Farmington address is not fixed, regular and adequate (see e.g. Appeal of D.W., 56 Ed Dept Rep, Decision No. 16,924).

Finally, there is no evidence in the record that petitioner and the students’ residence is temporary or transitional.  Petitioner and the students have resided at the Farmington address since December 2015 and the record contains no evidence that petitioner or the students 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).

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] It is unclear from the record whether or to what extent the homeless liaison was able to contact petitioner during this time period.

 

[2] In a September 23, 2016 letter, the superintendent indicated that petitioner informed her that his mother spends five months per year in Florida.  However, in a sworn statement submitted in support of its answer, the superintendent states that petitioner informed her that his mother “is purportedly in Florida three (3) months each year.”

 

[3] Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under McKinney-Vento, 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.

 

[4] Moreover, I note that proof of 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).