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Decision No. 17,243

Appeal of F.C., on behalf of her daughter R.C., from action of the Board of Education of the Elwood Union Free School District regarding residency and transportation.

Decision No. 17,243

(November 1, 2017)

Ingerman Smith LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

     Elia, Commissioner.--Petitioner appeals the determination of the Board of Education of the Elwood Union Free School District (“respondent”) that her daughter, R.C. (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.  The appeal must be dismissed.

The record indicates that that petitioner registered the student within respondent’s district in September 2012, using an in-district address.  According to respondent, in September 2013, petitioner notified the district that she and the student left their home within the geographical confines of respondent’s district and began residing on a temporary basis at petitioner’s mother’s house outside of respondent’s district in Bay Shore, New York (“Bay Shore address”).  For the remainder of the 2013-2014 school year, the student continued her enrollment in respondent’s district as a homeless student.

Respondent’s Assistant Superintendent for Business (“Assistant Superintendent”) avers that, in July 2014, after “repeatedly trying to ascertain Petitioner’s residency status to no avail,” she mailed an exclusion letter to petitioner at the Bay Shore address, which was returned as “unclaimed” and was forwarded to the Melville address.  After receiving no further communication from petitioner, respondent commenced a residency investigation of petitioner and the student on or about August 25, 2014. Upon arriving at the Bay Shore address, respondent’s investigator was informed that petitioner and the student no longer lived there but were instead living at an out-of-district address in Melville, New York (“Melville address”).  

The record indicates that respondent’s investigator conducted a home visit at the Melville address on August 29, 2014 and observed that the residence was a “nice 3 bedroom condo owned by [petitioner’s] uncle.”  The investigator noted that petitioner and the student had been residing there since December 2013 and that petitioner “state[d]” that she and the student sleep on the couch and a blow-up bed in the living room each night.    Thereafter, petitioner informed the district that she was in the process of finding a residence within the geographical confines of respondent’s district and the student remained enrolled in respondent’s district and attended classes until the end of the 2014-2015 school year.

 According to the record, respondent made several unsuccessful attempts to contact petitioner at the end of the 2014-2015 school year to inquire about the student’s residency status and to inform petitioner that the student would be excluded from school in respondent’s district effective June 25, 2015.

The record indicates that petitioner contacted the Assistant Superintendent on or about September 3, 2015 and informed her that she and the student still resided at the Melville address and that her uncle objected to her utilizing that address for the purpose of registering the student in the school district in which the Melville residence is located. Petitioner further informed respondent’s Assistant Superintendent that petitioner planned to move back into respondent’s district at a home owned by her aunt. Thereafter, petitioner requested enrollment of the student as a homeless student on or about September 9, 2015. On October 15, 2015, respondent’s investigator conducted a home visit and confirmed that petitioner and the student were still residing at the Melville address.    

By letter dated October 20, 2015, the Assistant Superintendent informed petitioner of respondent’s determination that she and the student had established residency outside of the district and that the student would be excluded from school in the district effective November 23, 2015.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 25, 2015.

Petitioner claims that she and the student are homeless and, therefore, the student should be allowed to continue attending school in respondent’s district. 

Respondent contends that petitioner has failed to meet her burden of proof and asserts that the student is not homeless because she has a fixed, regular and adequate night-time residence which is not temporary or transitional.  Respondent claims that the family has been residing at the Melville address since December 2013, and that there is no evidence on the record that their living situation is inadequate.

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[1]; 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

  1. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings...

At all times relevant to this appeal, both Education Law §3209 and §100.2(x) of the Commissioner’s regulations conformed to the definition of “homeless children and youths” in McKinney-Vento.[2]

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).

On this record, petitioner has failed to meet her burden to show that the student is homeless under either State or federal law.

In the petition, petitioner asserts that she and the student lack a fixed, regular, and adequate night-time residence and are sharing the housing of other persons due to economic hardship or other similar reasons.  Petitioner states that she is “out of work and looking for employment. We can not at this time afford proper housing.”  Petitioner further states that she and the student are temporarily living with family members in a three bedroom, one-and-a-half bathroom house at the Melville address.      

On this record, petitioner has failed to prove that the Melville address is inadequate, such that she and the student currently lack a fixed, regular and adequate night-time residence (see Appeal of R.V., 56 Ed Dept Rep, Decision No. 16,923; Appeal of Z.P. and D.P., 54 id., Decision No. 16,639; Appeal of T.C., 53 id., Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).     

Other than her conclusory allegations that she and the student are “sleeping in [the] living[room] on [a] couch” and that her grandmother and two uncles occupy the home’s three bedrooms, petitioner has provided no actual evidence of her living arrangements at the Melville address.  As noted above, the record indicates that respondent conducted multiple home visits and, while the investigator’s August 29, 2014 report notes that petitioner “stated” that she and the student sleep on a couch and a “blow-up bed” in the living room, it also describes the Melville address as “a nice 3 bedroom condo owned by [petitioner’s] uncle.”[3]  Other than petitioner’s conclusory assertions both to the investigator and in her petition, the record is devoid of any evidence that the Melville address is inadequate. Under these circumstances, petitioner has failed to meet her burden of proof. 

Moreover, petitioner has not established that her current residence is temporary or transitional.  The record indicates that petitioner and the student have been residing in the home of a family member at the Melville address outside the district’s geographic boundaries since December 2013, and it contains no evidence that they need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Finally, while I sympathize with petitioner’s claims that she is unemployed and cannot “afford proper housing,” I note that she provides no evidence to support these claims and, in any case, 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). 

On this record, I find that respondent’s determination that the student is not homeless was not arbitrary or capricious.

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 the student’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

 

[1] 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.

 

[2] Effective October 1, 2016, the McKinney-Vento Homeless Assistance Act was amended by the Every Student Succeeds Act, (42 U.S.C. §11432[g][3][E][i]; 42 U.S.C. §11432[g][4][A]).  The circumstances which gave rise to this appeal occurred prior to October 1, 2016.  As a result, the requirements of McKinney-Vento and the conforming provisions of Education Law §3209 and Commissioner’s regulation §100.2(x) in effect prior to October 1, 2016, are applicable to this appeal.

 

[3] I note that, in the October 15, 2015 home visit report, the investigator noted that, while petitioner made similar statements regarding the sleeping arrangements at the Melville address, she would not allow the investigator to enter the home.