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Decision No. 16,619

Appeal of S.T., on behalf of her son C.T., from action of the Board of Education of the Middleburgh Central School District regarding residency and transportation.

Decision No. 16,619

(June 20, 2014)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine A. Lanchantin, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Middleburgh Central School District (“respondent”) that her son 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.

The record indicates that during the 2010-2011 school year, C.T. was permitted to attend district schools as a homeless child due to domestic violence issues which forced him and his mother to leave their in-district residence and reside with a family friend in a two-bedroom home located outside the district in Sloansville, New York.

In the summer of 2011, petitioner’s former residence in Middleburgh was damaged and rendered uninhabitable due to flooding caused by Hurricane Irene. Petitioner and C.T. remained at the Sloansville residence, and C.T. was, again designated by respondent as homeless for the 2011-2012 school year.

In May 2012, respondent reviewed the homeless status of petitioner and C.T. and determined that the Sloansville residence, at which petitioner and C.T. had continuously resided for the previous 14 months, was a fixed, regular and adequate night-time residence. By letter dated May 29, 2012, respondent informed petitioner that C.T. no longer qualified as homeless under McKinney-Vento and could no longer attend district schools.

On August 8, 2012, the high-school principal contacted petitioner and inquired whether she needed assistance registering C.T. in a new school district. The principal referenced the May 29, 2012 letter. The record indicates that petitioner stated that she had not received the letter and believed the C.T. was still homeless. The high school principal re-sent the May 29, 2012 letter and encouraged petitioner to contact the district’s homeless liaison. On September 5, 2012 petitioner contacted the homeless liaison and asked what time the bus would pick up C.T. in the morning. The homeless liaison advised petitioner that, unless she appealed the district’s determination, she would have to enroll C.T. in the Schoharie Central School District as his district of residence.

By letter dated September 9, 2012, petitioner advised the homeless liaison of her desire to appeal respondent’s determination.

By letter dated September 11, 2012, the superintendent advised petitioner that C.T. was no longer considered homeless and, thus, was not entitled to attend school in the district. The basis for that determination was that C.T. and petitioner had been residing at the same home outside the district for over 18 months and, therefore, had a fixed, regular and adequate night-time residence.

On September 14, 2012, the district’s homeless liaison met with petitioner to assist with filing an appeal. On October 9, 2012, the liaison again met with petitioner, at which time petitioner provided documentation in support of her appeal, including a letter dated October 11, 2012, from a disaster case manager with the New York State Disaster Case Management program. The letter stated that petitioner was receiving the case manager’s assistance in obtaining suitable housing in respondent’s district and that petitioner’s current housing was “extremely over crowded.”

By letter dated October 12, 2012, the liaison requested additional information and clarification regarding the case manager’s statements. In response, by email dated October 15, 2012, the case manager indicated that she did not have any more information to provide. The appeal ensued. Petitioner’s request for interim relief was denied on October 24, 2012.

Petitioner alleges that C.T. is homeless within the meaning of McKinney-Vento. She asserts that they had to leave their in-district home due to domestic violence and that, subsequently, that home was rendered uninhabitable due to Hurricane Irene. Petitioner states that she and C.T. currently reside with a family friend and that the residence is overcrowded. Petitioner provides evidence that her in-district residence is subject to foreclosure.

Respondent maintains that petitioner resides in Sloansville, outside the district, and that C.T. is not a homeless student as defined by State and federal law. Respondent maintains that petitioner has failed to state a claim upon which relief may be granted.

Education Law §3209(1)(a) defines 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 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 ....

Section 100.2(x) of the Commissioner’s regulations also conforms 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).

Based on the record before me, I find that petitioner has not established that her son meets the definition of a homeless child under State or federal law. The record shows that petitioner and C.T. have lived with a friend outside respondent’s district since February 2011. They have a fixed, regular night-time residence and there is no evidence in the record that such residence is temporary or inadequate. Aside from petitioner’s conclusory assertions that this housing is “overcrowded” and an unsubstantiated statement to that effect by the disaster case manager, petitioner produces no evidence to establish that claim. Likewise, petitioner submits an unsubstantiated statement by the disaster case manager that the Sloansville home is not handicapped accessible (the record reflects that C.T. requires an accessible home). Petitioner produces no evidence to support this contention. In contrast, respondent’s homeless liaison avers that the disaster case manager never visited the home, that the home has a visible wheelchair ramp, and that respondent’s transportation supervisor has confirmed that a wheelchair ramp does exist. Petitioner has submitted no reply or other evidence to the contrary or offered any explanation for this inconsistency.

Based upon the record before me, petitioner has failed to demonstrate that she and C.T. lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a). Accordingly, I cannot find that respondent’s determination that petitioner is not homeless was arbitrary or capricious.

In light of this disposition, I need not consider the parties’ remaining contentions.
Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on her son’s behalf at any time should their circumstances change and to submit any documentary evidence for respondent’s consideration.