Appeal of a STUDENT WITH A DISABILITY, by his grandparent, from action of the Board of Education of the City School District of the City of Rye regarding residency and transportation.

Decision No. 17,484

(August 14, 2018)

Ingerman Smith, LLP, attorneys for respondent, Myrna B. Forney, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of Rye (“respondent”) that her grandson (the “student”) is not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

On or about August 31, 2016, petitioner informed respondent’s homeless liaison and director of pupil personnel services and special education (“liaison”) that she and the student had been evicted from her residence within respondent’s district and were currently residing at the student’s mother’s residence in Mount Vernon, New York (the “out-of-district address”).  Petitioner completed an enrollment form concerning her homeless status which she signed on August 31, 2016.  In the enrollment form, petitioner indicated that the student has been living at his mother’s residence since May 1, 2016.  Petitioner also provided proof of her eviction.  Based upon these representations, respondent allowed the student to attend its schools for the 2016-2017 school year as a homeless student.  Petitioner did not request transportation from the district and, instead, drove the student to and from school.

On or about August 28, 2017, the student’s mother contacted respondent’s district to request transportation from the out-of-district address for the 2017-2018 school year.  The liaison thereafter returned the student’s mother’s call.  In the ensuing phone conversation, the liaison learned that petitioner no longer lived at the student’s mother’s address.  The student’s mother further represented that she and petitioner shared “joint custody” of the student and indicated that she would be seeking sole custody.

Thereafter, respondent’s transportation coordinator contacted petitioner regarding transportation for the 2017-2018 school year.  In two separate calls, the student’s mother and a male who spoke on the student’s mother’s behalf indicated that they were only interested in transportation if it “could ... be provided on an intermittent basis ....”

In a letter dated September 6, 2017, respondent’s assistant superintendent for business informed petitioner that because the student had continued to reside at his mother’s out-of-district address since May 2016, he was no longer entitled to attend respondent’s schools as a district resident or as a homeless student.  The letter invited petitioner to submit documentation concerning the student’s residency and/or homeless status by September 13, 2017.  The letter stated that the student would be excluded from respondent’s schools as of October 13, 2017.

On September 7, 2017, the liaison spoke to the student’s mother on the telephone.  The student’s mother confirmed that the student had lived with her at the out-of-district address continuously since the summer of 2016.  When the liaison attempted to obtain further information, the student’s mother hung up on her.

Later on September 7, 2017, petitioner came to the district’s offices and stated that the student had his own room at his mother’s residence and that his mother “intended to return to court to obtain sole custody” of the student.

In a letter to petitioner and the student’s mother dated September 8, 2017, the liaison recounted the above events; referred to her September 6, 2017 letter and its deadline for submitting information concerning the student’s residency and/or homeless status; and requested that petitioner confirm that she was not requesting transportation for the student for the 2017-2018 school year.  Petitioner subsequently signed this letter on September 11, 2017 and returned it to the district, indicating that she was no longer requesting transportation for the 2017-2018 school year.

In a letter to petitioner dated September 15, 2017, the assistant superintendent for business reiterated the determination that the student was not a resident of respondent’s district.  This letter indicated that the student would be excluded from respondent’s schools as of October 16, 2017 absent an appeal to the Commissioner.  The assistant superintendent for business informed petitioner of her right to appeal the determination and provided petitioner with a form petition for an appeal involving a homeless child and youth.  This appeal ensued.

Petitioner contends that she “maintain[s] physical custody” of the student and asserts that she and the student’s mother share legal custody of the student.  Petitioner further states that she was rendered homeless in April 2016 and asserts that the student has been residing at his mother’s residence since that time.

Respondent contends that petitioner has failed to meet her burden of proving that the student’s residence is not fixed, regular or adequate.

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:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
3. abandoned in hospitals; or
4. 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;
5. an unaccompanied youth ...; or

2. a child or youth who has a primary nighttime location that is:

1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings....[1]

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).

Petitioner has failed to meet her burden of proving that the student is homeless.  First, petitioner has submitted no evidence suggesting that the student’s current residence is inadequate.  Petitioner describes the residence as a three-bedroom apartment where the student, his mother, her fiancé, and the student’s two siblings reside.  Petitioner further asserts that the student “has his own room” which “has a bed.”  Petitioner offers no further description of the residence.  Therefore, on this record petitioner has failed to meet her burden of proving that the student lacks a fixed, regular and adequate nighttime residence (Appeal of T.C., 56 Ed Dept Rep, Decision No. 17,116; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).

Additionally, there is no proof that the student’s mother’s residence is temporary or transitional.  At the time this appeal was commenced, the student had resided with his mother for approximately 17 months, and the record contains no evidence that the student or his mother need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404).

Petitioner’s claim that she has sole physical and joint legal custody of the student is not directly relevant to her claim of homelessness, except to establish that she has standing to bring this appeal.  Such a claim would only be relevant for purposes of a residency determination and petitioner has not alleged or proven that she and the student reside within respondent’s district.  On the contrary, petitioner alleges that the student is sharing housing with his mother at the out-of-district address, and the petition is silent about petitioner’s current address.  In the petition, petitioner merely asserts that she “maintain[s] physical custody” of the student and that she and the student’s mother share legal custody of the student.[2]  This, in and of itself, is insufficient to establish that she and the student actually reside in respondent’s district.  Therefore, petitioner has failed to allege or prove that the student could be considered a district resident.

Thus, based upon the record before me, petitioner has failed to demonstrate that the student is homeless within the meaning of McKinney-Vento in that he lacks a fixed, regular and adequate nighttime residence or that the student is living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a).  While it is unfortunate that petitioner and the student were evicted from petitioner’s home in April 2016, the student thereafter secured a fixed, regular and adequate nighttime residence with his mother.  Accordingly, I cannot find respondent’s determination that the student was not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on behalf of her grandchild at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration. 

THE APPEAL IS DISMISSED.

END OF FILE