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Decision No. 16,615

Appeal of L-M.L., from action of the Board of Education of the Enlarged City School District of the City of Middletown regarding residency and transportation.

Decision No. 16,615

(June 20, 2014)

Bond, Schoeneck & King, PLLC, attorneys for respondent, John A. Miller, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Enlarged City School District of the City of Middletown (“respondent”) that she is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements 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.

Petitioner’s mother, M.L., resides in Nevada. At some point prior to the beginning of the 2013-2014 school year, M.L. sent petitioner to live with her maternal grandmother, B.L., who resides in respondent’s district. When she first sought to enroll petitioner in respondent’s schools, M.L. provided the district with a temporary guardianship form which appointed B.L. temporary guardian of L-M.L.

By letter dated September 3, 2013, M.L. indicated to respondent’s superintendent that she was sending petitioner to live with B.L. and attend district schools because B.L. had a knee replacement and because she wanted petitioner to be able to “get the proper education that she needs.” M.L. also informed the superintendent that she was concerned that L-M.L. was not receiving a proper education in Nevada. Based upon the foregoing, the superintendent concluded that the reason petitioner was staying with her grandmother was to take advantage of district schools.

By letter dated September 4, 2013, the superintendent notified M.L. that her daughter was not a district resident, that B.L. did not have legal custody of L-M.L. and that, consequently, L-M.L. was not entitled to attend district schools.

Subsequently, it appears that petitioner and her mother asserted that petitioner is homeless for the purpose of securing her immediate enrollment in district schools. Consequently, the superintendent followed up his initial residency determination letter with a second letter, dated September 13, 2013, in which he determined that L-M.L. was not homeless but would be enrolled in district schools for a period of thirty days from receipt of the letter or from issuance of a stay by the Commissioner of Education, whichever occurred first.

This appeal ensued. Petitioner’s request for interim relief was denied on October 21, 2013.

Petitioner’s mother initially stated that she sent petitioner to reside with her grandmother, B.L., because B.L. had knee replacement surgery and also to get petitioner the proper education she needs. Thereafter, in support of petitioner’s subsequent claim of homelessness, M.L. stated in a September 10, 2013 email to the superintendent that her apartment in Nevada is cramped, noisy and, therefore, inadequate. Petitioner, for the first time in this appeal, maintains that she cannot reside with her mother in Nevada because they constantly fight and that she is happy living with her grandmother in respondent’s district.

Respondent maintains that petitioner is not homeless within the meaning of McKinney-Vento. Respondent also alleges that petitioner is an unemancipated minor who is not legally competent to maintain an appeal pursuant to Education Law §310.

Initially, I note that no appeal was made from the superintendent’s September 3, 2013 residency determination. Therefore, my review in this matter is limited only to petitioner’s claim of homelessness.

As discussed below, petitioner is not an emancipated minor, nor is she an “unaccompanied youth” pursuant to the Commissioner’s regulations. Accordingly, she lacks capacity to maintain this appeal, which must therefore be dismissed. However, even if the appeal were not dismissed on this basis, it would be dismissed on the merits.

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;
(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.

Petitioner does not fit the definition of a homeless child under either State or federal law. 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’s mother, M.L., initially claimed that she sent petitioner to live with her grandmother in the district because the grandmother had knee replacement surgery and because she wanted to get petitioner to receive the proper education. Subsequently, and only after respondent’s adverse residency determination, petitioner’s mother claimed that her apartment in Nevada is cramped and noisy. Other than that conclusory allegation, petitioner submits no evidence that her mother’s home is inadequate. Further, petitioner now claims, for the first time, that she cannot reside with her mother in Nevada because they constantly fight. Nevertheless, petitioner does not allege that she lost her home in Nevada due to economic hardship or similar reasons. Moreover, there is nothing in the record that indicates that petitioner was forced to leave her mother’s residence or that she could not return to it if she chooses. Moreover, on the State Education Department’s form “Petition for Appeal Involving a Homeless Child or Youth,” petitioner answered “no” to the question, “are the child’s/youth’s parent(s) or legal guardian homeless.” Petitioner merely made a choice to live with her grandmother in respondent’s district and this does not constitute homelessness. On this record, I find respondent’s determination that petitioner is not homeless to be reasonable (see Appeal of D.R., 48 Ed Dept Rep 60, Decision No. 15,793).

As noted above, respondent asserts that petitioner is a minor and, as such, cannot maintain this appeal. While an emancipated minor may maintain an appeal pursuant to Education Law §310 (Appeal of Caban, 35 Ed Dept Rep 532, Decision No. 13,622), petitioner here does not claim emancipated minor status.

In addition, an “unaccompanied youth” may commence an appeal to the Commissioner pursuant to §310 of the Education Law and assert claims under McKinney-Vento (see 8 NYCRR §100.2[x][7][iii][c]). However, petitioner does not fit the definition of an unaccompanied youth.

The Commissioner’s regulations define an unaccompanied youth as follows:

Unaccompanied youth means a homeless child or youth not in the physical custody of a parent or legal guardian. The term unaccompanied youth shall not include a child or youth who is residing with someone other than a parent or legal guardian for the sole reason of taking advantage of the schools of the district (8 NYCRR §100.2(x)(1)(vi) [emphasis added]).

As discussed above, petitioner is not “homeless” but, instead, appears to have chosen to move into her grandmother’s home in respondent’s district in order to take advantage of respondent’s schools. Petitioner, therefore, does not fit the definition of an unaccompanied youth (see Appeal of J.U., 50 Ed Dept Rep, Decision No. 16,095), nor is she an emancipated minor. Petitioner, consequently, lacks capacity to maintain this appeal.