Decision No. 17,165
Appeal of T.M., on behalf of her son M.M.-C., from action of the Board of Education of the Elwood Union Free School District regarding residency.
Decision No. 17,165
(August 28, 2017)
Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Elwood Union Free School District (“respondent” or “board”) that her child, M.M.-C. (the “student”), is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”). The appeal must be dismissed.
According to respondent, questions have existed as to the student’s residency since the 2013-2014 school year, when respondent was advised that petitioner and the student were not residing within the district. Respondent commenced an initial residency investigation, including home visits to petitioner’s claimed residence at her mother’s home within the district, and determined that petitioner and the student were not residing there. In September 2014, petitioner informed respondent that her mother’s in-district address had been sold. Respondent excluded the student from the district. Petitioner subsequently advised the district that she and the student were homeless within the meaning of McKinney-Vento. On May 4, 2015, petitioner advised respondent that she and the student were “doubled up” at a different address within the district (the “in-district address”).
During the 2016-2017 school year, the student was enrolled in respondent’s schools and attended its high school. Petitioner claims that she “lost [her] job a while back [and] couldn’t pay rent [and] the house was sold.” According to petitioner, she is now employed and has “been actively seeking permanent housing” but, since she cannot afford “to pay [the] broker fee, 1 month rent [and] security,” she and the student are sharing housing with three other individuals at the in-district address. Petitioner explains that she and the student stay at the in-district address a “couple nights [per] week” and that “on the days we don’t stay there we may sleep at a friends [sic] or relatives [sic] house.”
According to respondent, in May 2016, a question again arose as to the student’s residency when a “new registrant” identified the in-district address as his or her own. By letter dated May 26, 2016, respondent’s assistant superintendent for business (“assistant superintendent”) requested that petitioner provide updated information as to the student’s McKinney-Vento status. The record indicates that petitioner did not respond to this request. As a result, the assistant superintendent retained an investigator, who conducted surveillance of the in-district address on four separate days in September 2016, but did not observe petitioner or the student at that location. The assistant superintendent sent a second letter dated September 20, 2016, again requesting an update as to petitioner’s McKinney-Vento status. The assistant superintendent invited petitioner to meet on September 29, 2016. The record indicates that petitioner did not respond to this letter or attend the proposed meeting.
By letter dated September 29, 2016, the assistant superintendent informed petitioner of her determination that the student did not reside within the district; that attempts to follow up on the status of the student’s residency and claimed homelessness had been unsuccessful; that the student was not legally entitled to attend respondent’s schools; and that the student would be excluded as of October 17, 2016.
In October 2016, petitioner appealed respondent’s residency determination pursuant to Education Law §310. Petitioner subsequently notified respondent that she was still homeless and residing at the in-district address and at other locations. In light of petitioner’s representations, respondent indicated that it would not exclude the student from its schools. Thereafter, petitioner withdrew her residency appeal.
Respondent subsequently learned that the student was being transported to the high school in a black Honda Civic bearing a certain license plate number, and that petitioner “had recently listed” her address as one outside the district in Bay Shore, New York (the “out-of-district address”). Respondent’s investigator commenced surveillance of the out-of-district address, and observed petitioner and/or the student at that address on multiple occasions in October 2016, November 2016, and January 2017, often entering and departing in the black Honda Civic bearing the same license plate number.
By letter dated January 24, 2017, the assistant superintendent informed petitioner of her determination that petitioner and the student were neither residents of the district nor homeless within the meaning of McKinney-Vento. This appeal ensued.
Petitioner asserts herein that the student is a homeless child because he lacks a fixed, regular, and adequate nighttime residence and is sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.
Respondent maintains that its determination was rational and reasonable under the circumstances.
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
(ii)privately operated shelter designed to provide temporary living accommodations ...; or
(iii)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, the 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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).
Based on the record before me, I find that petitioner has not established that the student meets the definition of a homeless child under either State or federal law. Petitioner contends that she and the student are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason. Although the petition is not entirely clear, petitioner appears to argue that she and the student are sharing the housing of others at the in-district address a “couple nights [per] week” and that, when she and the student “don’t stay there,” they “may sleep at a friends [sic] or relatives [sic] house.” However, while petitioner identifies the alleged in-district address and its occupants, petitioner fails to identify or provide any evidence regarding any such alternate living arrangement(s), such as, for example, the addresses, other occupants, or frequency with which she and the student may stay at such other location(s) (cf. Appeal of A.S., 56 Ed Dept Rep, Decision No. 16,959). Moreover, the record indicates that respondent’s investigator did not observe petitioner and the student at the in-district address on any of the four days on which surveillance was conducted in September 2016, but that petitioner and the student were observed at the out-of-district address on approximately 10 weekday mornings in October 2016, November 2016 and January 2017. Although respondent’s surveillance evidence is not overwhelming, on this record, I find that it tends to contradict petitioner’s unsupported assertion that she and the student are sharing the housing of others in respondent’s district a “couple nights [per] week” and instead supports a finding that petitioner and the student have been physically present at the out-of-district address since at least October 2016 (see e.g. Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104).
In the petition, petitioner claims that she “lost [her] job a while back [and] couldn’t pay rent [and] the house was sold.” She claims that, although she is employed and has “been actively seeking permanent housing,” she cannot afford “to pay [the] broker fee, [one] month rent [and] security.” While it is unfortunate that petitioner has been experiencing financial difficulties, which may be impacting her ability to pay rent, economic hardship, in and of itself, is not sufficient to establish homelessness (see Appeal of A.N., 55 Ed Dept Rep, Decision No. 16,852; Appeal of T.J.G. and D.G., 54 id., 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).
On this record, petitioner has not met her burden of proving that her living arrangements are inadequate (see Appeal of N.L., 57 Ed Dept Rep, Decision No. 17,129). As noted above, in the petition, petitioner describes her living arrangements as follows: “we stay in [the in-district address] couple nights week [sic] on the days we don’t stay there we may sleep at a friends [sic] or relatives [sic] house.” Petitioner has provided no actual description of the living arrangements at either the in-district address or the out-of-district address. Petitioner has submitted no reply or any other evidence establishing that either address is inadequate and, under these circumstances, petitioner has failed to meet her burden of proof.
Additionally, aside from her conclusory statements in the petition, petitioner has not established that her living arrangement is temporary or transitional. As noted above, the record as a whole indicates that petitioner and the student are physically present at the out-of-district address. Petitioner indicates that she “ha[s] been actively seeking permanent housing,” but the “cost of housing [is] to[o] much and I don’t make enough to pay [the] broker fee, 1 month rent [and] security.” The fact that petitioner appears to assert that her family intends to move back to the district at some point does not establish that her current living arrangement is temporary or transitional within the meaning of Education Law §3209 (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,135; Appeal of a Student with a Disability, 52 id., Decision No. 16,404). In addition, there is no evidence in the record that petitioner needs to vacate or that there is a time limit on her current living arrangement (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,135; Appeal of S.L., 56 id., Decision No. 17,104; Appeal of R.D., 56 id., Decision No. 16,945; Appeal of A.W., 53 id., Decision No. 16,559).
Accordingly, based on the record before me, petitioner has not carried her burden of proof and I cannot conclude that respondent’s determination that petitioner’s son is not homeless is arbitrary, capricious or unreasonable.
Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s schools on her child’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
 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 child’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 U.S.C. §11432[g][E][i]). Therefore, no application for a stay in this appeal was necessary.
 While petitioner asserts that she and the student are sharing the housing of other persons due to economic hardship, she does not contest the district’s determination that petitioner does not reside within the district. The district’s determination that petitioner and the student do not reside within the district, then, has become final and binding on petitioner for purposes of this appeal (Appeal of LaVenture-Louis, et al., 56 Ed Dept Rep, Decision No. 17,027).
 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 U.S.C. §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.
 Additionally, I note that the record contains no evidence that petitioner has attempted to relocate to respondent’s school district.