Decision No. 17,318
Appeal of M.V., on behalf of her children A.V. and N.V., from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency and transportation.
Decision No. 17,318
(February 2, 2018)
Hodgson Russ LLP, attorneys for respondent, Luisa D. Johnson and Melanie Beardsley, Esqs., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cleveland Hill Union Free School District (“respondent”) that her children, A.V. and N.V. (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 and to receive transportation thereto. The appeal must be dismissed.
While the record is not entirely clear, it appears that petitioner and the students resided within the geographical confines of respondent’s district and that the students attended the schools of respondent’s district until the house that they were renting was sold. According to petitioner, because she was “unable to rent or buy [a] new home due to financial issues,” she and A.V. stay in a friend’s apartment located in Buffalo, outside of the district, and N.V. stays at his girlfriend’s house during “school days and occasionally stays at moms or dads [sic].”
According to respondent, petitioner unsuccessfully attempted to enroll the students in the Buffalo City School District. Thereafter, she asserted that she and the students were homeless. The parties agree that on October 5, 2017, respondent determined that the students were not homeless within the meaning of McKinney Vento. This appeal ensued.
Petitioner contends that the students are homeless and therefore, should be allowed to continue attending school in respondent’s district and that A.V. is entitled to transportation. Petitioner asserts that she and the students are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.” Petitioner further states that she and the students are temporarily living with a friend “for free to save money.”
Respondent argues that that petitioner has failed to meet her burden of proof and asserts that the students are not homeless under applicable law. Respondent also contends that it has acted in good faith and that its decision was not arbitrary, capricious or contrary to law.
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 petition indicates that petitioner’s request for transportation was denied on October 5, 2017. Respondent admits in its answer that, on October 5, 2017, it determined that the students were not homeless “and agreed to provide transportation until November 3, 2017.” The affidavit from respondent’s homeless liaison indicates that he accepted service of the petition on November 28, 2017. Therefore, the appeal was not commenced within thirty days of respondent’s October 5, 2017 determination. However, in its memorandum of law, after indicating that the superintendent denied petitioner’s application for homeless status on October 5, respondent states that it “subsequently” issued a “determination that the Students [sic] were not homeless and were in fact residents of the Buffalo City School District”. Respondent does not indicate when the subsequent determination was made, or whether it was in writing. On this record, I am unable to determine whether this appeal was commenced within 30 days of respondent’s final determination and I therefore decline to dismiss the appeal as untimely.
Turning to the merits, Education Law §3209(1)(a) defines “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; or
- 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;
- 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
- 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....
Both Education Law §3209 and §100.2(x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in McKinney-Vento.
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 find that petitioner has not established that the students meet the definition of a homeless child under either State or federal law.
Petitioner contends that she and her children, A.V. and N.V., are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.
The petition indicates that petitioner and A.V. are temporarily “[s]taying in a friends [sic] small apartment for free to save money” and that petitioner is “saving money for [a] house in district in this year 2017-2018 [sic].” The petition does not include a description of the living arrangement or make any statements about its adequacy except that the apartment is “small.” In support of its determination that petitioner and the students are not homeless, respondent submits a “Homeless Questionnaire” (“questionnaire”) completed by petitioner and dated September 12, 2017. The questionnaire indicates that six people live with petitioner in the apartment. The questionnaire also indicates that the apartment has four bedrooms and two bathrooms, that her child is not sharing a room or sharing a bed and that she sleeps in a spare room. On this record, I find that petitioner has not met her burden of proving that her current residence is inadequate.
Petitioner has also not established that her current residence at the out-of-district address is of a temporary or transitional nature. The fact that petitioner asserts that she is staying with a friend to save money so that she can purchase a home in the district does not establish that her current residence is temporary or transitional within the meaning of Education Law §3209 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404). Petitioner alleges that the arrangement is temporary but submits no evidence that she needs to vacate her current residence or that there is a time limit as to how long her family can reside there (Appeal of S.L., 56 Ed Dept Rep, Decision No. 17,104; Appeal of R.D., 56 id., Decision No. 16,945; Appeal of A.W., 53 id., Decision No. 16,559).
With respect to N.V.’s living arrangement, the petition indicates that N.V. “stays” with his girlfriend at an address located within respondent’s district “during school days” and that he also occasionally stays with petitioner, or with his father. Petitioner has provided no detailed description of N.V.’s living arrangement and no information about its adequacy. In the questionnaire, petitioner described only the Buffalo address. She also has provided no evidence that such arrangement is temporary or transitional, beyond her assertions, which I determined above to be insufficient. Therefore, on this record, I find that petitioner has not met her burden of proving that N.V.’s current residence is inadequate or temporary or transitional (see Appeal of A.A., 57 Ed Dept Rep, Decision No. 17,168; Appeal of A.M., 57 id., Decision No 17,146; Appeal of D.W., 56 id., Decision No. 16,924).
However, there remains the possibility that N.V. could be entitled 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).
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).
Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see 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). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).
The petition indicates that the children’s father resides in Williamsville, outside of respondent’s school district, but is silent about the father’s custodial rights, if any. Petitioner avers that “Jessie” provides support for N.V., but the petition does not explain who “Jessie” is and is devoid of any additional details. The “Form Notice of Petition for an Appeal Involving a Homeless Child” includes blank lines where petitioner should have indicated who exercises control over N.V.’s activities and behavior, and to whom petitioner relinquished control over N.V., if in fact she did. Therefore, on this record I find that petitioner has failed to prove that there has been a total and permanent transfer of custody and control from his parents to someone who resides in the district. Thus, the presumption that N.V. resides with one of his parents applies, and petitioner has not proven that N.V. is a resident of respondent’s school district.
Accordingly, based on the record before me, I find that respondent’s determination that the students are 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 her children’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
 The record indicates that the students’ father lives separately from petitioner, and resides in Williamsville, New York. The record also indicates that N.V.’s girlfriend lives within the geographical confines of the district.
 While the parties do not dispute this date, in its memorandum of law, respondent indicates that “[s]ubsequently [it] issued a determination that the [s]tudents were not homeless....” I note that the record is devoid of any exhibits which document respondent’s determinations.
 Effective October 1, 2016, §11432(g)(3)(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.
 In its memorandum of law, respondent states that the students “are still attending the District[’s] school pending the outcome of this appeal....” I note, however, that respondent does not specify whether the students have also been receiving transportation during the pendency of this appeal. In this regard, I remind respondent that, effective July 1, 2017, §100.2(x)(7)(ii)(c) of the Commissioner’s regulations requires that if a dispute arises surrounding a child’s McKinney-Vento eligibility, school selection or enrollment, such student shall be immediately enrolled “and/or provide[d with] transportation” pending final resolution of the dispute, including all available appeals.
 The questionnaire asks “[i]s your child sharing a room” and “[i]s your child sharing a bed.” Although petitioner checked “no” for both answers, she makes no distinction between A.V. and N.V.
 The petition also indicates that N.V. stays at an address within the school district with “gf Haley”, presumably referring to the student’s girlfriend.