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Decision No. 17,743

Appeal of S.D., on behalf of her daughter A.G., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 17,743

(August 27, 2019)

Ingerman Smith, LLP, attorneys for respondent, Diana M. McManus, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

According to the record, petitioner enrolled the student in respondent’s district in October 2009.  At that time, petitioner indicated that she and the student resided at an address located within respondent’s district (“the in-district address”).

On four days in October 2018,[1] respondent was conducting surveillance of the in-district address.  The student was not observed on any of these four days of surveillance.  Respondent conducted an additional five days of surveillance in March 2019, and the student was not observed on any of those dates.

In a letter dated April 1, 2019, respondent’s director of pupil personnel services (“PPS director”) informed petitioner that the district had reason to believe that the student did not reside within the district.  The PPS director indicated that the district was “prepared to meet” with petitioner on April 8, 2019 at 9:00 a.m. to discuss the student’s residency.  Petitioner did not respond to this letter or appear at the April 8, 2019 meeting.

On April 11, 2019, the PPS director spoke with petitioner on the telephone.  According to the PPS director, petitioner indicated that she did not receive the April 1, 2019 letter because she had “not lived” at the in-district address “for some time.”  Petitioner further stated that she and the student were “living temporarily” in Uniondale, New York with family members (“the out-of-district residence”).  The PPS director then referred petitioner to the district’s homeless liaison.

On April 15, 2019, the homeless liaison spoke with petitioner and scheduled a home visit.  On the following day, April 16, 2019, petitioner contacted the homeless liaison and cancelled the home visit.

On or about May 1, 2019, the homeless liaison spoke with petitioner again.  He avers that petitioner was unwilling to allow a home visit and that she inquired whether she could “use a friend’s address in Baldwin” to keep the student enrolled in respondent’s district.  The homeless liaison explained that this was not permissible.  Petitioner further explained, according to the homeless liaison, that she and the student had lived at the out-of-district residence for several years but claimed that her housing was “temporary” in nature.  When asked if she had any documentation to support her claim that the out-of-district residence was temporary, petitioner indicated that she was unable to provide any such documentation.

In a letter dated May 2, 2019, the PPS director informed petitioner of the district’s determination that the student was not homeless.  This appeal ensued.

Petitioner asserts that the student is homeless because she and the student were evicted from the in-district residence five years ago and are sharing the housing of another at the out-of-district residence.

Respondent contends that the student is not homeless within the meaning of McKinney-Vento or the Education Law, asserting that petitioner has failed to establish 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
  1. 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).

Petitioner has failed to meet her burden of proving that the student is homeless.  Initially, petitioner has not established that she and the student were evicted from the in-district address.  Petitioner merely asserts in conclusory fashion that her “[f]amily was evicted 5 year ago [sic]” but has produced no proof in support of this assertion.  Therefore, I find that petitioner has failed to establish that she is sharing the housing of other persons due to a loss of housing or similar reason (Appeal of A.K., 58 Ed Dept Rep, Decision No. 17,440).

Assuming, arguendo, that petitioner had been evicted, petitioner has submitted no evidence even suggesting that the student’s current residence is inadequate.  Although petitioner asserts that she and the student are “[l]iving with mother and cousin” and checked a box indicating that she is “sharing the housing of other persons,” petitioner offers no description of the characteristics of the out-of-district residence, such as the number of bedrooms.  Indeed, petitioner submits no evidence at all in support of the claims in her petition.  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 petitioner and the student’s residence is temporary or transitional.  By petitioner’s admission, she and the student have resided at the out-of-district residence for five years, and the record contains no evidence that the student or petitioner 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).

Based upon the record before me, petitioner has failed to demonstrate that the student is homeless within the meaning of McKinney-Vento in that she 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).  Accordingly, I cannot find respondent’s determination that the student is 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 child at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Respondent conducted surveillance on a fifth day, October 24, 2018, but it is unclear whether the student was observed on this date.  Respondent merely indicates that “the number of children exiting the residence [in the morning] did not fit the descriptions of the students described by the District [to an investigator] as residing at the [in-district] address.”

 

[2] 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.