Decision No. 17,146
Appeal of A.M. from action of the Board of Education of the Pavilion Central School District regarding residency and transportation.
Decision No. 17,146
(August 14, 2017)
Osborn, Reed & Burke, LLP, attorneys for respondent, Jennifer M. Schwartzott, Esq., of counsel
ELIA, Commissioner.--Petitioner, A.M. (“the student”), appeals the determination of the Board of Education of the Pavilion Central School District (“respondent”) that he is not entitled to attend the schools of the district 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 record indicates that on September 15, 2016, petitioner attempted to enroll himself in respondent’s district. Petitioner asserted on his enrollment form that he was living in a temporary living arrangement due to loss of housing or economic hardship. Petitioner’s enrollment form indicates that his parents are divorced and his mother has custody, but that she lives out-of-state. A handwritten note on the enrollment form indicates that the student is living within the district with someone other than his parents.
By letter dated September 15, 2016, respondent denied petitioner’s request for enrollment based upon respondent’s determination that petitioner’s legal guardian does not live in the district, that he has two family members who live close to the district, and the information provided related to petitioner’s residency was inconsistent. This appeal ensued.
Petitioner asserts that he is an unaccompanied youth, and is homeless because he is sharing the housing of others due to loss of housing, economic hardship or a similar reason. Petitioner asserts that he and his mother, who has sole custody, have irreconcilable differences and that his mother no longer permits petitioner to live in her home. Petitioner asserts that he is living in a doubled-up situation with the family of a friend and that such living arrangement is temporary and can be terminated at any time. Petitioner seeks a determination that he is a homeless unaccompanied youth entitled to attend respondent’s schools and receive transportation without the payment of tuition.
Respondent contends that petitioner does not meet the definition of homeless because he is living in the district “of his own volition” and not with his mother who has primary physical custody and lives out-of-state. Respondent further asserts that the student is not homeless because his father is a resident of the school district immediately adjacent to respondent’s district. Respondent asserts that petitioner has failed to state a claim upon which relief can be granted, and that the petition is incomprehensible. Respondent further asserts that the appeal is untimely, and that petitioner does not meet the definition of a homeless child or youth.
I must first address a procedural matter. 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). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).
Respondent’s determination that petitioner is not entitled to attend the schools of the district is dated September 15, 2016. The record does not indicate when petitioner received respondent’s determination. Thus, affording five days for mailing, the appeal should have been commenced no later than October 21, 2016. Respondent’s homeless liaison submitted an affidavit of service indicating that she accepted personal service of the petition herein on October 18, 2016. Therefore, because the petition was served prior to October 21, 2016 I decline to dismiss the appeal as untimely.
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...
At the time of respondent’s determination in this matter, the Commissioner’s regulations defined an unaccompanied youth as follows:
Unaccompanied youth means a homeless child or youth not in the physical custody of a parent or legal guardian. The term unaccompanied youth shall not include a child or youth who is residing with someone other than a parent or legal guardian for the sole reason of taking advantage of the schools of the district (8 NYCRR §100.2[x][vi]) (emphasis in original).
Under this definition, the youth must be both homeless and not in the physical custody of a parent or guardian.
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 cannot find that petitioner has met his burden to show that he is a homeless unaccompanied youth. Petitioner asserts that he is “living in a doubled up situation” with the family of a friend, and that such arrangements are temporary and can be terminated at any time. In both the enrollment forms and within the petition, petitioner consistently states that the living situation is temporary and can be terminated by the family friend at any time. However, other than the conclusory assertion that he is “doubled up,” petitioner does not provide any details about the adequacy of the living conditions, such as, for example, the number of bedrooms, and whether or not petitioner has his own bed in the home. Therefore, without any specific information about the adequacy of the arrangements, I cannot find that the residence is inadequate. Because petitioner has not established that he lacks a fixed, regular, and adequate night-time residence, he therefore has not proven that he is a homeless unaccompanied youth (see Appeal of L.M-L., 53 Ed Dept Rep, Decision No. 16,615; Appeal of a Student with a Disability, 52 id., 16,404; Appeal of J.U., 50 id., Decision No. 16,095).
The record indicates that, on the enrollment form, petitioner identified himself as a student seeking enrollment as a homeless student who was living in temporary housing due to the loss of housing or economic hardship. However, although respondent seems to have provided petitioner with the form notice of petition for an appeal involving homeless child or youth along with the contact information for the district’s homeless liaison, respondent’s determination that petitioner was not entitled to attend its schools appears to be based on an analysis of his residency status. As noted above, respondent denied petitioner’s enrollment because of its determination that petitioner’s legal guardian does not live in the district, that he has two family members who live close to the district, and that the information provided related to petitioner’s residency was inconsistent.
However, because petitioner identified himself as a homeless student on the enrollment form, the student should have been immediately enrolled as required by both Education Law §3209 and Commissioner’s regulation §100.2(x) (see e.g. Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,255). While the record does not clearly state precisely when the student was enrolled, I remind respondent of the obligation to ensure that the educational needs of this vulnerable population are met in accordance with the State and federal requirements.
Although in this appeal petitioner asserts only that he is entitled to attend respondent’s schools as an unaccompanied homeless youth, for the benefit of the parties, I will address whether petitioner has a right to attend respondent’s schools as a district resident. Education Law §3202(1) provides, in pertinent part, as follows:
A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.
The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924). “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).
However, the presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).
Petitioner asserts that his mother surrendered parental control to the family friend within the district. The record refers to a notarized letter from petitioner’s mother granting temporary guardianship to the family friend, who resides within the district, for a period of four months commencing on September 1, 2017. However, no such document is included in the record, and as described, such document on its face is temporary in nature and, even if legally valid, could not affect a total and permanent transfer of parental custody and control. Therefore, petitioner has not provided documentary evidence of a total and permanent transfer of custody and control. As such, petitioner has failed to provide sufficient evidence to rebut the presumption that his residence is with his custodial parent.
However, such presumption can also be rebutted by establishing that the pupil is an emancipated minor (Appeal of Diaz, 33 Ed Dept Rep 38, Decision No. 12,967; Appeal of Werher and Carlson, 31 id. 186, Decision No. 12,614; Appeal of Forde, 29 id. 359, Decision No. 12,319).
For purposes of establishing residency under Education Law §3202, a student is considered emancipated when he or she is beyond the compulsory school age; is living separate and apart from his or her parents in a manner inconsistent with parental custody and control; is not receiving any financial support from his or her parents; and has no intent to return home (Appeal of Diaz, 33 Ed Dept Rep 38, Decision No. 12,967; Appeal of Werher and Carlson, 31 id. 186, Decision No. 12,614).
The record indicates that shortly after this appeal was filed, petitioner turned eighteen years old, which is beyond the compulsory school age. The record further indicates that petitioner is living separate and apart from his custodial parent. However, petitioner did not provide any information related to who provides financial support for him. Without any such information, petitioner has not established that he is emancipated for purposes of rebutting the presumption that his residence with his custodial parent for purposes of establishing residence within respondent’s district.
In light of this disposition, I need not address the parties’ remaining contentions.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission at any time and to submit any documentary evidence for respondent’s consideration.
I further remind respondent to review Commissioner’s regulation §100.2(x) for the enrollment of homeless youth and Commissioner’s regulation §100.2(y) which sets forth the procedures that a district must follow in making determinations of student residency.
THE APPEAL IS DISMISSED.
END OF FILE
 Effective October 1, 2016, §114329(g)(3)(E)(i) of the McKinney-Vento
Homeless Assistance Act, as amended by 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, because this appeal was commenced on October 18, 2016 no application for a stay in this appeal was necessary.
 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.
 I note that, effective April 20, 2017, the term “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017, includes “an unaccompanied youth, as defined in [McKinney-Vento]” (Education Law §3209[a][v]). Pursuant to McKinney-Vento, as amended by the Every Student Succeeds Act (42 USC §11434a), the term “‘unaccompanied youth’ includes a homeless child or youth not in the physical custody of a parent or guardian.” Effective July 1, 2017, the Commissioner’s regulations were amended to include “unaccompanied youth” in the definition of “homeless child” (8 NYCRR §100.2[x][iii]). Specifically, the Commissioner’s regulations refer to an “unaccompanied youth, as defined in ... McKinney-Vento ..., which includes a homeless child or youth not in the physical custody of a parent or guardian” (8 NYCRR §100.2[x][iii]). However, as noted, these amendments were not applicable during the time period at issue in this appeal, and in any case do not alter the conclusion that an unaccompanied youth must meet the definition of a “homeless child.”