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Decision No. 16,541


 Appeal of J.G., on behalf of her son N.D., from action of the Board of Education of the Clarkstown Central School District regarding residency and transportation.

Decision No. 16,541

(August 29, 2013)

Lexow, Berbit & Associates, P.C., attorneys for respondent, Warren E. Berbit, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that her son, N.D., is not homeless within the meaning of the McKinney Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and is, therefore, not entitled to attend the district’s schools or receive transportation. The appeal must be dismissed.

In the fall of 2010, petitioner enrolled her son, N.D., in respondent’s district based on an address located on Third Street in New City, New York (“Third Street address”) within the district. The record indicates that the landlord and owner of the property is Joseph Holland, apparently petitioner’s fiancé at that time.

During the 2011-2012 school year, district staff received an anonymous report that the Third Street house was vacant. By letter dated March 28, 2012, respondent’s assistant superintendent for personnel (“assistant superintendent”) requested that petitioner provide an updated lease agreement and utility bill for the Third Street address no later than April 20, 2012. Petitioner failed to submit any response by that date.

By letter dated April 24, 2012, the assistant superintendent notified petitioner that, given her failure to submit any proof of her residency, he determined that she was not a district resident and, therefore, N.D. was no longer entitled to attend the district’s schools tuition-free. The letter further advised that, if petitioner wanted N.D. to continue to attend its schools tuition-free, she would need to supply the requested documentation no later than May 4, 2012, or N.D. would be “de-registered” and excluded from school, effective May 18, 2012. It is unclear what petitioner may have provided to the district.

However, it appears that N.D. attended respondent’s schools for the remainder of the 2011-12 school year and continued in the 2012-2013 school year.

According to the record, during the fall of the 20122013 school year, additional concerns arose regarding petitioner’s residency because district mail addressed to the Third Street address was returned. In addition, the assistant superintendent asserts that he visited that address “multiple” times but no furniture was observed in windows, no one answered the door and there were no signs of occupancy. Petitioner also answered calls to a telephone number registered to a home located outside the district on Buena Vista Road in New City, New York (“out of-district address”). Staff also noted that, in 2011,petitioner had requested to have her son’s bus stop changed to a location close to the out-of-district address, where she then claimed she worked.

It appears from the record that, in January 2013, in discussions with the assistant superintendent regarding her residency, petitioner acknowledged that she no longer resided at the Third Street address but now lived at the out-of-district address that her fiancé, Joseph Holland, also owned. 1 She also claimed that, because her fiancé owned both properties, she believed that she was entitled to send her son to respondent’s schools.

By letter dated January 23, 2013, the assistant superintendent notified petitioner that he had determined that she and N.D. were no longer residing at the Third Street address, but rather, were living at the out-of district address. Petitioner was further advised that, if she did not present evidence sufficient to contradict that determination by January 28, 2013, N.D. would no longer receive educational services as of January 31, 2013.

At that point, it appears from the record that petitioner apparently claimed that she and her son were homeless and living temporarily at the out-of-district address. By letter dated March 23, 2013, the assistant superintendent, as respondent’s homeless designee, wrote to petitioner seeking information to substantiate her claim of homelessness under McKinney-Vento. The assistant superintendent stated that, although petitioner had, at one point, temporarily lived at Third Street address, she no longer did so but was claiming that, for economic reasons, she was temporarily renting a room from Joseph Holland at the out-of-district address. The assistant superintendent noted that, to date, petitioner had not provided any evidence to substantiate her claims, nor had she demonstrated that she lacked a fixed, regular night-time residence. He afforded petitioner until April 5, 2013 to provide such evidence.

1.Notably respondent submits a copy of petitioner’s driver’s license listing the out-of-district address, which was issued on January 18,2010.

By handwritten letter, dated April 4, 2013, petitioner reiterated that she had no home or job. She further stated that she was looking for another home in the district and that she was living in a “room” provided by Joseph Holland, who, she stated, was no longer her fiancé. She apparently provided proof of receipt of unemployment benefits for the week ending March 18, 2012. However, she stated that she did not “feel the need to give you details on our living situation ...”

By letter dated April 17, 2013, the assistant superintendent notified petitioner that, after considering petitioner’s information, he had determined that she did not qualify as homeless under McKinney-Vento. He referenced his earlier communication which indicated that, although petitioner claimed that she may eventually move into the district, she failed to submit any proof that her current address was temporary or transitional. Moreover, petitioner failed to demonstrate that she lacked a fixed, regular night-time residence, or that the residence was inadequate.

The April 17, 2013 letter also stated that, in the event petitioner appealed the decision denying N.D. homeless status, the district would allow N.D. to remain in school for the remainder of the school year.

This appeal ensued. On or about May 20, 2013, respondent advised my Office of Counsel that it was permitting N.D. to attend school for the remainder of the2012-13 school year. Therefore, petitioner’s request for interim relief was rendered moot.

Petitioner contends that she and her son are homeless under McKinney-Vento and accordingly, are entitled to both educational services and transportation from respondent’s

district. She asserts that she meets the definition of homeless pursuant to McKinney-Vento in that, as a result of losing her job and unemployment benefits, she could no longer live at the Third Street address. She asserts that she and N.D. are temporarily living at “a private residence not designed for more than 1 person.”

Respondent contends that petitioner’s son is not homeless within the meaning of McKinney-Vento. Respondent counter-claims for an award of tuition and attorneys fees.

 Education Law §3209(1)(a) defines a homeless child as: 

(1) a child or youth who lacks a fixed, regular, and adequate night-time residence, including a child or youth who is:

(i) sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii) abandoned in hospitals;

(iv) awaiting foster care placement; or

(v) a migratory child . . . who qualifies as homeless under any of the provisions of clauses (i)through (iv) of this subparagraph or subparagraph two of this paragraph; or

(2) a child or youth who has a primary night-time location that is:

(i) a supervised publicly or privately operated shelter designed to provide temporary living accommodations . . .; or

(ii) 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., 48id. 348, Decision No. 15,882).

On the record before me, I find that N.D. does not meet the definition of a homeless child under either State or federal law. Although petitioner asserts in a conclusory manner that she is homeless and can no longer live at the Third Street address due to economic hardship, she provides no documentary evidence at all with her petition to substantiate that claim.

Petitioner has also failed to produce any evidence demonstrating that her son lacks a fixed, regular and adequate night-time residence. Although petitioner states that she and her child are staying in a “room” at Joseph Holland’s out-of-district residence, she fails to set forth, in any detail, evidence that her current housing is inadequate to accommodate her and her son. Respondent maintains that the home is “commodious,” and petitioner provides no details concerning the living arrangements at Mr.Holland’s residence. Given the absence of information in the record regarding petitioner’s current living quarters, I cannot conclude that the housing is inadequate. There is no evidence in the record that their living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209. Thus, on this record, petitioner failed to demonstrate that her son lacks a fixed, regular and adequate night-time residence and is homeless (Appeal of a Student with a Disability, 52Ed Dept Rep, Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129; Appeal of S.D., 47 id. 44, Decision No. 15,620).

In addition, petitioner has not established that her current residence is of a temporary or transitional nature. Petitioner admits that her former fiancé/former landlord is allowing her to live in his residence. As she asserted in her April 4, 2013 note to respondent’s designee, although she is looking for a home in respondent’s district, “it takes time to do so.” There is no evidence that petitioner needs to vacate her current residence or that there is a time limit as to how long she and her son can reside there(Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404; Appeals of L.B., 50 Ed Dept Rep, Decision No. 16,129; Appeal of J.U., 50 id., Decision No.16,095). Accordingly, based on the record before me, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

As a final matter, respondent has interposed a counter-claim for tuition reimbursement and attorney’s fees. The Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337,Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737). Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737). In addition, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310(Application of Kolbmann, 48 Ed Dept Rep 370, Decision No.15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).Respondent’s request, therefore, is denied.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission to respondent’s schools on her son’s behalf at any time, particularly if his living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.