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Decision No. 16,867

Appeal of M.V., on behalf of her daughter V.M., from action of the Board of Education of the Longwood Central School District regarding residency and transportation.

Decision No. 16,867

(February 4, 2016)

Ingerman Smith L.L.P., attorneys for respondent, David F. Kwee, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Longwood Central School District (“respondent”) that her daughter 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.

Since on or about September 2005, petitioner resided in an apartment in respondent’s district (“in-district address”) and, accordingly, her daughter attended the district’s schools as a resident.  In or about September 2014, respondent learned that petitioner and her boyfriend were being evicted from their apartment and that they were staying with a friend at a residence located outside respondent’s district (“out-of-district address”) in the neighboring William Floyd Central School District.  V.M. was considered homeless and continued to attend school in respondent’s district with transportation for the 2014-2015 school year.

In the beginning of the summer of 2015, respondent attempted to contact petitioner to request information on her housing status.  After not hearing from petitioner, respondent sent a letter dated August 17, 2015 to the out-of-district address indicating that petitioner’s daughter no longer met the criteria for transitional housing under McKinney-Vento.  On August 25, 2015, petitioner contacted respondent’s homeless liaison by phone to request that school bus transportation continue between the out-of-district address and respondent’s high school.  The homeless liaison advised petitioner that, because she had resided at the out-of-district address for the entire 2014-2015 school year with no specific plans to move elsewhere, and, because that housing appeared adequate, she was no longer considered homeless pursuant to McKinney-Vento.

The record indicates that immediately following this phone conversation on August 25, 2015, petitioner appeared at the respondent’s central administration office with her boyfriend to meet with respondent’s officials, including the homeless liaison.  At that time, petitioner claimed that she had never received the August 17, 2015 letter and she was then provided with a copy of the letter.  Respondent contends that during the meeting it became apparent to respondent that petitioner and her boyfriend had rented the in-district apartment together and that they also resided together at the out-of-district address as one family.

On August 26, 2015, the homeless liaison contacted V.M.’s father to discuss her housing situation.  V.M.’s father indicated that petitioner, her boyfriend and V.M. all resided at the out-of-district address, and that they were renting that residence.

On September 2, 2015, petitioner, her boyfriend, the homeless liaison and V.M. met with respondent’s Assistant Superintendent of Student and Community Services (“Assistant Superintendent”).  Respondent contends that, at that time, petitioner indicated that she believed that her housing was temporary even though she admitted that her boyfriend would permit her to remain at the out-of-district address indefinitely.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 29, 2015.

Petitioner contends that she and her daughter are homeless within the meaning of McKinney-Vento because they share the housing of another person due to economic hardship or a similar reason.  In her petition, petitioner claims that V.M. is sharing housing on a temporary and rotating basis with her sister, her brother, her father, and petitioner’s boyfriend.  Petitioner also claims that she and V.M. house-sit vacant homes for a local real estate agent on a temporary basis.  Petitioner maintains that she and V.M. move from place to place to “maintain shelter and a safety zone.” 

Respondent asserts that petitioner and her daughter are not homeless within the meaning of McKinney-Vento.

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; 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 nighttime 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., 48 id. 348, Decision No. 15,882). 

Based on the record before me, I find that petitioner has not met her burden of proving that her daughter meets the definition of a homeless child under either State or federal law.  Petitioner submits no evidence that the out-of-district address is not a fixed, regular and adequate nighttime residence.  The record shows that, after being evicted from the in-district address, petitioner and her daughter have been residing there with petitioner’s boyfriend since September 2014 and the petition lacks any claim by petitioner that the out-of-district address cannot adequately accommodate three people on a permanent basis.  In fact, the record shows that petitioner, her daughter and her boyfriend also resided together in the in-district apartment, which they had rented, prior to being evicted therefrom (see Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912).  Petitioner offers no explanation as to why this prior living arrangement would have changed in the 2014-2015 school year.  On this record, petitioner has failed to carry her burden of demonstrating that she and her daughter lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a)(see Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804; Appeal of a Student with a Disability, 53, id., Decision No. 16,621).

Additionally, petitioner has not established that her living arrangement is temporary or transitional.  Contrary to petitioner’s allegations in the petition that she is residing at various other locations with relatives in Centereach, New York, Mastic, New York, and Ridge, New York, and in vacant homes, the record indicates that V.M. continued to take the school bus to and from the out-of-district address during the entire 2014-2015 school year.  According to respondent’s Assistant Superintendent, district procedures require that if a student is not utilizing the out-of-district school bus for more than four days, the district would contact the parent and arrange either busing from a different location, or to discontinue transportation services altogether.  V.M.’s transportation between school and the out-of-district address was never discontinued and she continued to utilize such transportation from the out-of-district address for the entire 2014-2015 school year.  Moreover, the Assistant Superintendent avers that at the September 2, 2015 meeting, petitioner admitted that her boyfriend would permit her to stay at the out-of-district address indefinitely.  I note that petitioner has submitted with the petition an unnotarized statement from her boyfriend that there were times during the 2014-2015 school year when she and her daughter were not sleeping at his residence and an unnotarized statement by a realtor indicating that petitioner and her daughter had house sat for him at an address in Shirley, New York for “a good part of the spring” of 2015.  However, these statements lack detail and at most demonstrate that petitioner agreed to house-sit another home and briefly left the out-of-district residence and stayed at that other home for a period during the 2014-2015 school year.  Absent an explanation by petitioner of why her daughter continued to be transported from the out-of-district address during this period and given that petitioner has not explained why she left to house-sit and that she and her daughter returned to the out-of-district residence and are able to remain there indefinitely, I do not find petitioner’s evidence to be sufficient to establish that the out-of-district residence was temporary or transitional at the time respondent made its determination.  Finally, at the time of respondent’s August 17, 2015 determination, petitioner and her daughter were residing at the out-of-district address and had been doing so for an extended period, even if they had briefly left to house-sit.  Petitioner has not established that the loss of her current housing is imminent or that there is a limit as to how long she and her daughter can reside there (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608).

Accordingly, based on the record before me, I cannot conclude that respondent’s determination that petitioner’s daughter is not homeless is arbitrary, capricious or unreasonable.