Decision No. 17,170
Appeal of L.F., on behalf of her daughter D.F., from action of the Board of Education of the City School District of the City of Port Jervis regarding residency and transportation.
Decision No. 17,170
(August 29, 2017)
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Port Jervis (“respondent”) that her daughter (“the student”) 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 tuition free or to receive transportation thereto. The appeal must be dismissed.
Petitioner alleges that the student lives with her and other relatives in Middletown, New York (“out-of-district address”). In an affidavit, respondent’s Director of Pupil Personnel Services (“the director”) asserts that petitioner has confirmed that she does not have legal custody of her daughter. Respondent submits a Certificate of Custody indicating that, on April 29, 2013, legal and physical custody of the student was placed with the Cumberland County, North Carolina, Department of Social Services (“CCDSS”) by Order of the Juvenile Court. The certificate further indicates that, on November 25, 2013, the CCDSS placed the student with two individuals (“guardians”) in Port Jervis and that they have permission to, among other things, seek medical attention for the student and enroll the student in school.
According to the record, at the time of the student’s enrollment in the district in 2013, she was living with her guardians at an address within the district (“in-district address”). The director attests in her affidavit that on or about April 7, 2017, the student and one of her guardians had an argument which resulted in the student leaving the in-district address and residing with petitioner at the out-of-district address. The director further attests that the student’s guardian advised respondent that, on or about April 9, 2017, he told the student that she was welcome to return to his home, but the student had not returned.
After the student moved in with petitioner, petitioner informed respondent that the student was living with her at the out-of-district address. Respondent considered the student homeless and conducted an investigation into her status. During the pendency of the investigation, the student continued to attend school in the district and was provided with transportation.
As a result of the investigation, respondent discovered that the out-of-district address is a multi-family residence, not a homeless shelter. Petitioner lives at the out-of-district address with her mother and another daughter, with whom the student shares a bedroom. By letters dated May 1, 2017, the director notified the student’s guardians and petitioner that the district had determined that the student was not homeless within the meaning of McKinney-Vento because the student “is being returned to the care of her mother,” who resides in the Middletown school district. This appeal ensued.
Petitioner contends that her daughter is homeless within the meaning of McKinney-Vento. She seeks a determination that her daughter is a homeless student entitled to transportation to the district’s schools.
Respondent contends that neither petitioner nor the student are homeless within the meaning of McKinney-Vento and that petitioner does not have standing to bring this appeal because she is not the student’s legal guardian. It maintains that its decision denying the student enrollment because she was not homeless and is not a resident of the district was rationally based and was neither arbitrary nor capricious.
I will first address two procedural issues. Respondent argues that petitioner lacks standing to bring this appeal as she is not the student’s legal guardian. As noted above, the record includes a Certificate of Custody indicating that, on April 29, 2013, by Order of the Juvenile Court, the student was placed in the custody of the CCDSS, and that, on November 25, 2013, the CCDSS placed the student with two individuals who have permission to, among other things, seek medical attention for the student and enroll the student in school. However, respondent does not submit the Juvenile Court Order, which makes it impossible to determine the duration of the placement with the legal guardians or to confirm that the Juvenile Court permanently terminated petitioner’s parental rights. Other than the unsupported statement in respondent’s May 1, 2017 letter that the student “is being returned to her mother,” there is no current information in the record regarding possible changes in the student’s custody arrangement since 2013. Given the uncertainty in the record, I decline to dismiss the appeal for lack of standing on the part of petitioner, who is the student’s mother.
However, the appeal must be dismissed for failure to join the guardians as necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Certificate of Custody indicates that the student was placed with the guardians by the CCDSS and they were given the right to enroll and withdraw the student from school. A determination in this appeal that the student is homeless and entitled to transportation from her mother’s residence would adversely affect the guardians’ rights under the Juvenile Court Order to have custody of, and make educational decisions for, the student. Thus, the guardians should have been joined as respondents in this appeal and petitioner’s failure to do so warrants dismissal.
Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Education Law §3209(1)(a) defines “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; or
(iv)a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
(v)an unaccompanied youth, as defined in section seven hundred twenty-five of subtitle B of title VII of the McKinney-Vento Homeless Assistance Act; 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).
Petitioner has not met her burden of proving that her daughter meets the definition of a homeless child. Although the petition is not entirely clear, petitioner appears to assert that the student is homeless because she is sharing the housing of others due to loss of housing, economic hardship, or a similar reason. However, petitioner offers no explanation of the circumstances that caused her daughter to become homeless. The petition merely states that the student is residing with petitioner. Respondent’s evidence indicates that the student left the in-district address because of an argument with one of the guardians, but that the guardian subsequently told the student that she is welcome to return. Such evidence indicates that the student has a preference to reside with her mother, but not that she is homeless for a reason similar to loss of housing or economic hardship (see Appeal of G.D. and T.D., 45 Ed Dept Rep 191, Decision No. 15,298).
Additionally, there is no evidence in the record that the residence is inadequate. Respondent submitted evidence that petitioner and her daughter are living in a multi-family residence. Petitioner did not submit a reply or any evidence to rebut respondent’s evidence or explain how the living arrangement is inadequate (see Appeal of N.L., 57 Ed Dept Rep, Decision No. 17,129; Appeal of D.W., 55 id., Decision No. 16,812). Moreover, petitioner makes no assertion that her current residence is temporary or transitional and there is no evidence that petitioner or her daughter needs to vacate the residence or that there is a fixed time limit as to how long they may reside there (see Appeal of N.L., 57 Ed Dept Rep, Decision No. 17,129; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).
On this record, petitioner has failed to carry her burden of demonstrating that her daughter lacks a fixed, regular and adequate nighttime residence or that she is living in the kind of shelter or other accommodation described in Education Law §3209(1)(a). Accordingly, I cannot conclude that respondent’s determination that the student is not homeless is arbitrary, capricious and unreasonable.
Although the petition does not include a request for relief in this regard, I note that respondent’s May 1, 2017 letters advising the student’s guardians and petitioner that the student was not homeless also advises the guardians about their right to appeal to the Commissioner of the State Education Department within 30 days, but indicates that if an appeal is not filed, the decision will go into effect five days later on May 5, 2017. I admonish respondent that that it was obligated to enroll the student pending final resolution of any appeals (42 USC 11432[g][E]; Education Law §3209[c]) and that no application for a stay in an appeal to the Commissioner is necessary under these circumstances (see e.g. Appeal of H.H., 57 Ed Dept Rep, Decision No. 17,141). Respondent must ensure that it fully complies with the requirements of McKinney-Vento in all cases.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 In its memorandum of law, respondent states that the guardians are the student’s uncle and aunt. The record is unclear as to whether the Juvenile Court Order permanently transferred parental custody and control to them or made a temporary placement, such as a foster care placement.
 In her affidavit, the director indicates that the district discovered that, in or around September 1, 2016, the student’s sister was staying in a homeless shelter, but neither petitioner nor the student stayed at the shelter, and petitioner was not homeless when the student began living with her.
 According to respondent, the student’s sister attends school in the Middletown Enlarged City School District.
 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.
 I note that petitioner did not submit a reply in response to respondent’s answer.