Appeal of C.V., on behalf of her child J.B., from action of the Board of Education of the South Huntington Union Free School District regarding residency and transportation.

Appeal of F.V., on behalf of his child, R.V., from action of the Board of Education of the South Huntington Union Free School District regarding residency and transportation.

Decision No. 17,700

(July 18, 2019)

Ingerman Smith LLP, attorneys for respondent, David F. Kwee, of counsel

ELIA, Commissioner.--In two separate appeals, petitioners challenge the determination of the Board of Education of the South Huntington Union Free School District (“respondent”) that J.B. and R.V. (“the students”) are 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”).  Because the appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision.  The appeals must be sustained.

The students are related to each other as nephew and aunt; petitioner C.V. is the daughter of petitioner F.V.  Petitioners and the students resided within respondent’s district until December 2018 when, unable to pay the monthly rent on their apartment, petitioners moved into a two-bedroom basement apartment outside of respondent’s district (“the out-of-district residence”).  The record indicates that the students lived with both petitioners at both addresses, as well as with an additional adult, student R.V.’s mother, and an additional child, who is the sibling of student J.B.

On January 17, 2019, petitioner F.V. went to respondent’s Maplewood Intermediate School (“Maplewood”) and informed school officials that student R.V., his daughter, had moved to a house in the neighboring Huntington Union Free School District (“Huntington”).  Petitioner F.V. completed a student transfer form attesting to this move.

On January 18, 2019, petitioner F.V. returned to Maplewood with petitioner C.V., seeking paperwork confirming that both students had been withdrawn from respondent’s district so that petitioners could register the students in Huntington.  Later that same day, petitioners F.V. and C.V. returned to Maplewood and reported that Huntington’s registration officials told petitioners that the students would be able to continue attending school in respondent’s district and receive busing to and from the out-of-district residence.  Petitioners represented to respondent that the apartment they had moved to was transitional or temporary housing.

By letter dated January 31, 2019, respondent’s assistant superintendent for student services (“assistant superintendent”) notified petitioner F.V. that respondent would provide transportation for student R.V. from the out-of-district residence to respondent’s schools pursuant to McKinney-Vento.

By letters dated February 13 and 14, 2019, respondent’s assistant superintendent advised petitioners of respondent’s conclusion that the students did not qualify as homeless under McKinney-Vento because the out-of-district address was “fixed, regular, and adequate.”  The assistant superintendent further indicated that respondent’s determination was based upon petitioners’ attempts to enroll the students in Huntington, during the course of which petitioners signed affidavits attesting that the out-of-district residence was their “permanent” residence.  This appeal ensued.

Petitioners contend that the students are homeless within the meaning of McKinney-Vento and, therefore, are entitled to continue to attend school in respondent’s district and receive transportation.  They assert that their out-of-district housing is temporary and inadequate.

Respondent contends that the students are not homeless within the meaning of McKinney-Vento.  Respondent asserts that petitioners live in a fixed, regular and adequate nighttime residence located outside the district, and, further, that petitioners have failed to establish that their living situation is inadequate or that they are sharing the housing of other persons due to a loss of housing or economic hardship.

First, I must address two procedurals issues.  Respondent contends that petitioner F.V.’s appeal must be dismissed for failing to provide a “clear” statement of his claim, inasmuch as, with respect to the petition for student R.V., petitioner F.V. filled out portions of the “Form Notice of Petition for an Appeal Involving a Homeless Child and Youth” in Spanish.  Respondent contends that it was deprived of a meaningful opportunity to respond to such assertions.[1]  However, respondent does not assert that it was unable to understand or translate these allegations and has not demonstrated that it suffered any prejudice.  Indeed, the assistant superintendent indicates that “the [p]etition alleges (in Spanish) inadequacies with respect to the apartment, the electricity, and the bathroom,” and counsel for respondent concedes in its answer that it was able to “decipher” the allegations.  Therefore, the record indicates that respondent, in fact, reviewed and responded to the allegations in the petition for student R.V.

Turning to the merits, 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 ....[2]

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).

On this record, I find that the students meet the definition of homeless children under State and federal law.  Petitioners state that the family unit moved into a two-bedroom basement apartment in Huntington that lacks a kitchen, is cramped for the three adults and three children, is infested with rodents and cockroaches, and experiences frequent electricity cut-offs.  The apartment has a small refrigerator, but petitioners claim they are unable to keep much food in the apartment due to lack of storage space and because the apartment is infested with rodents.  Petitioners provide four photographs of the out-of-district apartment which appear to portray stairs leading from a first-floor apartment to their basement apartment, a storage space below these stairs filled with two dressers topped with suitcases and storage bins, a mini-refrigerator, and a bedroom with two mattresses and a dresser.

Based on this evidence, I find that petitioners have met their burden of proving that the out-of-district residence is inadequate, rendering the students without a fixed, regular and adequate nighttime residence (Appeal of R.M., 54 Ed Dept Rep, Decision No. 16,643; Appeal of R.W., 49 id. 73, Decision No. 15,962).  The record indicates that the apartment lacks a kitchen, making it difficult, if not impossible, to adequately prepare meals (see Appeal of R.G., 41 Ed Dept Rep 428, Decision No. 14,736).  Petitioners, who have been renting the apartment for four months, indicate that they are trying to find an apartment with a kitchen that they can afford.  Under these circumstances, it is clear that the basement apartment with no kitchen is only a temporary accommodation and, therefore, petitioners and their children cannot be said to reside at a fixed, regular and adequate nighttime address (see Appeal of R.G., 41 Ed Dept Rep 428, Decision No. 14,736).

Observations made by an investigator engaged by respondent generally support petitioners’ contentions.  On a home visit at the Huntington address on the afternoon of March 26, 2019, the investigator accessed petitioners’ basement apartment through a door in one of the first-floor apartments.  He observed that the apartment included a small living room containing a small table and two mattresses lined up end-to-end, a small bathroom, and two bedrooms.  The investigator also noted that while the residence contained a small refrigerator in the living room, he “did not see a kitchen.”  The investigator further noted that there was an outside entrance directly accessible from one of the apartment’s bedrooms.

The investigator avers that he spoke to G.V., who identified herself as the mother of student R.V. and the wife of petitioner F.V.  The investigator avers that G.V. told him that the students each slept in one of the apartment’s two bedrooms, which had a bed for each child, a dresser and a small closet.  Student R.V. shared a bedroom with G.V., while student J.B. shared a bedroom with his mother and his sibling.  The investigator additionally reported that, according to G.V., the family had to go out almost every night to purchase fast food for meals because the apartment lacked a kitchen.  G.V. told the investigator that she and her husband were trying to find an apartment with a kitchen in Huntington so they could feed the students more nutritious food, but that, so far, they had been unable to find an apartment within their price range.  Respondent submits no evidence on appeal to contradict or supplement the investigator’s observations, which generally confirm the inadequacy of the out-of-district residence.

The investigator also states that, according to public records, “[i]n 2010 a permit was issued for the owner to legalize a finished basement to consist of a living room, bathroom, one bedroom and a cellar entrance for each living unit.”  Such records, however, do not reference that the property owner obtained permits needed to rent this basement space as an apartment and respondent does not explain whether this project was initiated or completed and does not submit a copy of the permit.  Therefore, to the extent respondent suggests that this permit indicates adequacy, I do not find the mere issuance of a permit concerning the out-of-district residence eight years prior to the time this dispute arose to be probative of the adequacy or permanence of the out-of-district residence.[3]

Respondent further suggests that petitioners’ four-month tenure at the out-of-district residence suggests that it is, or has become, permanent.  However, I have previously held that an inadequate residence, such as the one at issue here, does not become a fixed, regular, and adequate nighttime residence merely due to the length of time its inhabitants have resided therein (see Appeal of R.M., 54 Ed Dept Rep, Decision No. 16,643).

Finally, respondent suggests that petitioners are not homeless because they originally sought to register the students in Huntington, but then later claimed to be homeless and requested enrollment in respondent’s district.  Respondent appears to suggest that petitioners felt the out-of-district residence was adequate until Huntington school officials “advised them to claim homelessness so that they could stay in [respondent’s] [d]istrict ....”  The circumstances under which petitioners became aware of their right to claim homelessness under McKinney-Vento and State law, however, is irrelevant as to whether the students occupy a fixed, regular and adequate nighttime residence.  On this record, for the reasons set forth above, I find that petitioners have met their burden of proving that the students lack a fixed, regular and adequate nighttime residence.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that that respondent permit R.V. and J.B. to attend school in the South Huntington Union Free School District without the payment of tuition and provide transportation services to R.V. and J.B. for the duration of homelessness and in accordance with Education Law §3209, including but not limited to those provisions regarding a child’s terminal year in a school building, where applicable.

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