Decision No. 17,316
Appeal of A.B., on behalf of her children K.L. and K.B., from action of the Board of Education of the Queensbury Union Free School District regarding residency and transportation.
Decision No. 17,316
(February 2, 2018)
Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Karla Williams Buettner, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Queensbury Union Free School District (“respondent”) that her children, K.L. and K.B. (the “students”), are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431, et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation. The appeal must be dismissed.
The record indicates that in May 2015, petitioner enrolled K.L. in respondent’s district because she was living with petitioner and K.B. at petitioner’s mother’s house (K.B.’s grandmother) at an address within the geographical confines of respondent’s district (“Queensbury address”). Although unclear, the record appears to indicate that at that time, petitioner’s mother had joint custody of K.L. and K.L. was therefore permitted to attend school in respondent’s district. On September 14, 2015, petitioner then registered her other daughter, K.B., in respondent’s district. However, unlike petitioner’s daughter K.L., petitioner’s mother did not have custody of K.B. Respondent considered K.B. homeless under McKinney-Vento and permitted her to attend respondent’s schools during the 2015-2016 school year.
On or about December 14, 2015, respondent’s deputy superintendent received information that petitioner and the students moved back with petitioner’s boyfriend in Bolton Landing, New York (“Bolton Landing address”), which was the residence in which they originally resided prior to moving in with petitioner’s mother. The Bolton Landing address is outside the district.
By letter dated December 18, 2015, the deputy superintendent informed petitioner of respondent’s determination that the students were not homeless as defined by federal or State law based on the following:
[Petitioner] moved back into the home that [she] occupied prior to becoming homeless at the [Bolton Landing address]. [She] had not been considered homeless at that time. Also, the home has sufficient bedroom space for all family members to sleep in beds, as indicated by [petitioner’s boyfriend] to our district’s homeless liaison. Your residence is considered permanent ... Because you are neither a permanent resident of the district nor homeless ... your children are not entitled to transportation to the Queensbury School District, although having been considered homeless for the beginning of the school year, your children are entitled to continue attending Queensbury Schools until the end of the school year.
This appeal ensued. Petitioner’s request for interim relief was denied on January 29, 2016.
Petitioner claims that she and the students are homeless and therefore, the students should be allowed to continue attending school and receiving transportation to such school within respondent’s district.
Respondent contends that the appeal must be dismissed for failure to exhaust administrative remedies. Respondent also contends that petitioner has failed to meet her burden of proof and asserts that the students are not homeless because petitioner has a fixed, regular and adequate night-time residence which is not temporary or transitional.
I must first address the procedural issues. Respondent contends that the appeal must be dismissed for failure to exhaust administrative remedies. As a prerequisite to an appeal pursuant to Education Law §310, a petitioner must exhaust administrative remedies when there is a legal mandate or applicable provision of law requiring exhaustion (Appeal of Jane Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108; Appeal of Moultrie, 33 id. 89, Decision No. 12,987; Appeal of a Child with a Handicapping Condition, 32 id. 83, Decision No. 12,766). In her December 18, 2015 letter, the deputy superintendent informed petitioner that “You may appeal this decision to the Commissioner of the State Education Department within 30 days. If you do not file an appeal within 30 days, the decision will go into effect on January 20, 2016.” The deputy superintendent did not assert, and the record does not show, that petitioner was required to appeal prior to commencing an appeal to the Commissioner pursuant to Education Law §310. In this regard, respondent has not alleged or proven that it has adopted a policy mandating such appeals. Therefore, I decline to dismiss the petition for failure to exhaust administrative remedies (see Appeal of Jane Doe,57 Ed Dept Rep, Decision No. 17,295).
Nevertheless, the appeal must be dismissed on the merits. At all times relevant to this appeal, Education Law §3209(1)(a) defined “homeless child” as:
- a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
- sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
- living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
- abandoned in hospitals;
- awaiting foster care placement;
- 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
- a child or youth who has a primary nighttime location that is:
- a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
- a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings....
While previous circumstances may have made the students eligible for services under McKinney-Vento, petitioner has failed to meet her burden to show that the students are currently entitled to attend respondent’s schools as homeless students.
In the petition, petitioner asserts she left the Queensbury address and moved back to the Bolton Landing address due to “ongoing physical arguments with my parents and [my children]. [It] was not a very mentally healthy situation to all parties.” She further states she “had no choice but to come back to [the Bolton Landing address]” and indicates that there are three bedrooms at the Bolton Landing address; one of which is occupied by a roommate and the second by petitioner, her boyfriend and her daughter. The third bedroom is occupied by petitioner’s oldest daughter and her child and petitioner asserts that her son sleeps on the couch.
On this record, petitioner has failed to prove that her children 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). While petitioner claims that she left the Queensbury address because of arguments with her parents, there is no evidence in the record that she cannot return to that address. Such allegations indicate that petitioner has a preference to reside at the Bolton Landing address, but not that she is homeless for a reason similar to the 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 Bolton Landing residence is inadequate. The record indicates that petitioner and the students are living with petitioner’s boyfriend at the Bolton Landing address and respondent’s Deputy superintendent submitted an affidavit indicating that petitioner’s boyfriend informed the school district’s homeless liaison that there was sufficient bedroom space for “all of the family members to sleep in beds at the house.” Moreover, respondent’s attorney asserts in her affidavit that “a Preventive Services Worker from the Warren County Department of Social Services [indicated] that the individual who sleeps on the couch in Bolton Landing has his own separate apartment in the basement and sleeps on the couch in the winter because he finds it warmer.” Petitioner did not submit a reply or any evidence to rebut respondent’s evidence or explain how the living arrangements are inadequate (see Appeal of N.L., 57 Ed Dept Rep, Decision No. 17,129; Appeal of D.W., 55 id., Decision No. 16,812).
Petitioner further asserts that the Bolton Landing address is a temporary residence because:
This home was recently filed on in Bankruptcy Court, and was in foreclosure prior to Bankruptcy. So at any time we will [be] forced to leave premise [sic].
As proof, petitioner submits a one page document from the United States Bankruptcy Court, Northern District of New York, entitled “Discharge of Debtor.” I note that petitioner is not named as the debtor in this document, and while this document may reflect financial insolvency or economic hardship for another resident of the property located at the Bolton Landing address, it does not demonstrate that the Bolton Landing address is temporary or transitional. I have previously held that, for purposes of determining homelessness under McKinney-Vento and Education Law §3209, the threat of foreclosure proceedings is insufficient to demonstrate that a residence is temporary or transitional (Appeal of R.D., 56 Ed Dept Rep, Decision No. 16,945; Appeal of S.D., 53 id., Decision No. 16,608). Moreover, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of H.H., 57 Ed Dept Rep, Decision No. 17,141; 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). Therefore, the mere fact that a resident of the Bolton Landing address may be the subject of a bankruptcy proceeding does not demonstrate that petitioner is in danger of imminently losing her housing or that there is a fixed time limit as to how long she and the students may remain (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608; Appeal of A.W., 53 id., Decision No. 16,559). Indeed, aside from her conclusory allegation, petitioner submits no evidence establishing that the Bolton Landing residence is the subject of foreclosure proceedings. Therefore, on this record, I cannot conclude that respondent’s determination that petitioner’s children are 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 the students’ 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 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.