Decision No. 17,564
Appeal of T.K., on behalf of her child J.K., from action of the Board of Education of the Patchogue-Medford Union Free School District regarding residency and transportation.
Decision No. 17,564
(January 4, 2019)
Guercio & Guercio, LLP, attorneys for respondent, Kelly A. Reape, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Patchogue-Medford Union Free School District (“respondent”) that her child (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.
According to petitioner, on August 25, 2016 she and the student were forced to leave their residence within respondent’s district because the owner of the house sold it in a “short sale” with “no notice [to petitioner] before  house was being sold.” Petitioner claims that she was given no information because it was a foreclosure and the house was given back to the bank, therefore she had “no time to save money to move into [a] new home.” Petitioner and the student moved into the basement of a friend’s house located outside of respondent’s district in Centereach, New York (“the out-of-district residence” or “the Centereach residence”). Respondent permitted the student to continue attending its schools on a tuition-free basis as a homeless student.
By letters dated June 11 and July 11, 2018 respondent sought updated housing information from petitioner in order to determine if the student remained homeless. In response to the July 11, 2018 letter, petitioner completed and returned a housing questionnaire stating that she and the student continue to reside at the Centereach residence “staying in the open space in [the] basement.” In an affidavit submitted by respondent, its director of pupil services (“the director”) avers that regular reports from respondent’s social workers state that the student is doing well and “has everything he needs (internal quotations omitted) in his current living situation.” The director also averred that the Centereach address is a three bedroom, two bathroom detached home and attaches to her affidavit an internet search result which describes the property as such. Based on this information and petitioner’s statement in the housing questionnaire that she continues to reside at the Centereach residence, by letter dated July 24, 2018, the director notified petitioner that the student was not homeless because the student had continuously resided at the Centereach residence since August 25, 2016 and that petitioner’s residence satisfies the McKinney-Vento criteria for permanent housing in that it is fixed, regular and adequate and can no longer be considered temporary. She also notified petitioner that the student would be excluded from the district’s schools, effective August 23, 2018. This appeal ensued.
Petitioner seeks a determination that the student is a homeless child entitled to attend respondent’s district without the payment of tuition and that the student is entitled to transportation.
Respondent contends that the petition fails to demonstrate a clear legal right to the relief requested and that the student is not homeless within the definition of Education Law §3209 and McKinney-Vento and is therefore not entitled to enrollment or transportation to the district on a tuition-free basis.
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 ...; 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
On the record before me, I find that the student does not fit the definition of a homeless child under State and federal law. Petitioner claims that she and the student are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of another person due to a loss of housing, economic hardship or similar reason. Petitioner states that she and the student became homeless in August 2016 when the owner of the house in which they previously resided had to sell the house due to foreclosure and she was left “with no time to save money to move into [a] new home.” Petitioner asserts that she and the student relocated to the Centereach residence where they reside with seven other individuals who are “friends of [the] family.”
In support of her claim of homelessness, petitioner asserts that she and the student “[are] forced to share” an open area in the basement of the house which she describes as “a common area for [everyone who resides] in [the] house.” The only evidence petitioner submits in support of this claim are very dark photographs which appear to show a room with a bed, shoes, and a pool table and a separate area with a washing machine and dryer. However, petitioner provides no proof, such as an affidavit from another person with whom she shares the house that the space is a “common area”, or that the living arrangement is inadequate for petitioner and the student (see Appeal of V.B., 57 Ed Dept Rep, 17,421; Appeal of E.B., 47 id. 94, Decision No. 15,638). Nor does petitioner make any claims such as lack of privacy, lack of access to the bathrooms in the house or inability to use the kitchen to prepare meals for herself and the student (see Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221). Moreover, the director attaches an internet search result which describes the Centereach residence as a three bedroom, two bathroom, 1,829 square foot home to which petitioner submits no reply.
Petitioner has also failed to establish that her current residence is temporary or transitional. Petitioner has resided at the Centereach residence for more than two years, since August 2016, and does not assert that her living arrangement is temporary. Petitioner submits evidence that she is on a waiting list for apartments as of August 1, 2018 and she submits an August 6, 2018 letter from a real estate broker stating that the broker has been “actively seeking apartment rentals” for petitioner and the student in respondent’s district. While this documentation demonstrates a recent effort on petitioner’s part to find an apartment within respondent’s district, it is insufficient to prove that petitioner’s living arrangement is temporary or transitional (see Appeal of T.B., 53 Ed Dept Rep, Decision No. 16,521).
Based upon the record before me, petitioner has failed to meet her burden of establishing that she or the student currently lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other temporary living accommodations set forth in Education Law §3209. Accordingly, I cannot find that respondent’s determination that the student is not homeless was 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 child at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 I note that the record does not contain an affidavit from the social worker or any “written reports.”
 Education Law §3209(1)(a-1) excludes from the definition of “homeless child” a child in a foster care placement or receiving educational services under certain provisions of Education Law §3202 or Articles 81, 85, 87 or 88 of the Education Law, circumstances not presented in this appeal.