Appeal of A.K., on behalf of her grandson D.J., from action of the Board of Education of the Elwood Union Free School District regarding residency and transportation.

Decision No. 17,440

(July 10, 2018)

Ingerman Smith, L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Elwood Union Free School District (“respondent”) that her grandson (the “student”) is not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

Prior to the events described in this appeal, the student attended respondent’s schools.  On or about August 10, 2017, petitioner called the district’s central registration office and indicated that she sought to withdraw two of her children from respondent’s schools, indicating that she and the children had moved to an address in Connecticut.[1]  Petitioner further asserted that these children would be attending a school located in Connecticut.

In a letter dated August 10, 2017, respondent’s assistant superintendent for business (“assistant superintendent”) sent withdrawal forms to petitioner for the two children whom she sought to withdraw.  In this letter, the assistant superintendent indicated that petitioner had not yet withdrawn the student who is the subject of the instant appeal.  The assistant superintendent further stated that because the student did not reside within its district, he was ineligible to attend respondent’s schools.

On or about August 16, 2017, petitioner submitted a document to respondent captioned “Child Care Authorization” whereby petitioner purported to grant “the authority to take temporary care” of the student to two individuals who reside within respondent’s district.  The document was signed by petitioner on August 16, 2017.  Petitioner also submitted a notarized “[p]arent’s [a]ffidavit” whereby she attested that she resided in Connecticut, that she was not able to take care of the student due to health problems and indicated that she transferred temporary custody of the student for two years to the two individuals residing within respondent’s district.

According to the record, petitioner met with the assistant superintendent on August 16, 2017 and informed her that the student “wanted to stay in Elwood and did not want to live in Connecticut with [p]etitioner.”  Petitioner further asserted that the student would only stay with the two individuals identified in the child care authorization form “through the end of football season.”

In a letter dated August 17, 2017, the assistant superintendent indicated that the student was ineligible to attend respondent’s schools because petitioner’s purported transfer of custody and control over the student was “temporary in duration” and “for the explicit purpose of providing a different school placement” for the student.  The assistant superintendent stated that she was nevertheless willing to meet with petitioner on August 18, 2017 to “discuss the factual basis for [her] conclusion.”

On August 18, 2017, petitioner met with the assistant superintendent.  At this meeting, petitioner indicated that she was homeless and residing with a friend in Connecticut.  Petitioner stated that the friend’s residence was “an apartment,” that she and four other children and/or grandchildren were sharing one bedroom and that “there was not enough room” for the student.  Petitioner further stated that the Connecticut residence consisted of a kitchen, a living room, one bathroom and one bedroom.  Petitioner also asserted that “the children were all sleeping on the floor.”  Petitioner submitted a student residency questionnaire to the assistant superintendent in which she asserted that the student’s living arrangement was temporary due to a loss of housing or economic hardship.  Petitioner also submitted a STAC-202[2] form designating respondent’s district as the district of origin.  The assistant superintendent thereafter referred the matter to the district’s homeless liaison.

Following the August 18, 2017 meeting, respondent completed an internet search for the Connecticut address identified by petitioner.  This revealed that the address was a four-bedroom, two-bathroom house with approximately 1,812 square feet of living space.

Respondent’s homeless liaison attempted to contact petitioner multiple times between August 18, 2017 and September 20, 2017 to inquire further about her and the student’s living situation. 

In a letter to petitioner dated September 25, 2017, the assistant superintendent indicated that the homeless liaison had attempted to contact petitioner numerous times, and that the district required additional information “to make an informed decision” regarding the student’s continued enrollment in respondent’s district.

The record indicates that on September 29, 2017, petitioner contacted the homeless liaison “and declared her intention to move [the student] to Connecticut once she was able to buy the student a bed.”  Petitioner indicated that she would keep the district informed of her efforts.

The record also indicates that on or about October 16, 2017, petitioner contacted the homeless liaison and “expressed displeasure” at the homeless liaison’s attempts to contact her and inquire as to her claimed homelessness.  Petitioner stated that she “believed” she had located a suitable residence in Connecticut and, in a few weeks’ time, “would bring [the student] to Connecticut with her.”

In a letter dated October 20, 2017, the assistant superintendent informed petitioner of the district’s determination that the student was neither a district resident nor a homeless student because she did not provide the district with any information regarding her temporary living arrangement, and the district could not substantiate her claim of residency within its district.  The assistant superintendent indicated that the student would be excluded from its school as of December 1, 2017 but invited petitioner to meet with her on October 26, 2017 “to discuss the factual basis for this conclusion.” 

In a letter dated October 27, 2017, the assistant superintendent indicated that petitioner did not attend the October 26, 2017 meeting and reiterated that the student would be excluded from respondent’s district as of December 1, 2017.  This appeal ensued.

Petitioner asserts that she and the student were evicted from the in-district residence “[i]n August,” and were “forced to move in with a friend” in Connecticut.  Petitioner asserts that she resides in a single bedroom with one of her sons and three of her grandchildren.  Petitioner additionally indicates that she “do[es] not have room” for the student “at this time.”  Petitioner further asserts that the student “was taken in by another family” who lives within respondent’s district, and that the student “is living at their house.”

Respondent contends that petitioner has failed to meet her burden of proving 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

2. 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
   ....[3]

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, petitioner has not proven that she and the student are homeless.  While petitioner indicates that she and the student were evicted from the in-district residence, she submits no proof to support this assertion.  Petitioner’s contentions in this respect are undercut by the fact that, when she called to withdraw two children from the district on August 10, 2017, there is no indication in the record that she reported that she had been evicted.  Additionally, six days later in a meeting with the assistant superintendent, petitioner reported that the student “wanted to stay” in respondent’s district and “did not want to live in Connecticut with [p]etitioner,” but did not allege that the student was homeless.  Petitioner did not submit a reply or otherwise respond to this evidence.  Therefore, petitioner has failed to meet her burden of proving that she is sharing the housing of other persons due to a loss of housing or similar reason.[4]

Even assuming, arguendo, that petitioner had been rendered homeless, petitioner only makes conclusory assertions as to the adequacy of her current residence.  While petitioner claims to live in a single bedroom with one of her sons and three of her grandchildren at the home of a “friend,” petitioner has offered no information as to why such arrangement was necessitated by the nature of the housing arrangement (i.e., the house’s floor plan or the number of inhabitants).  On the contrary, respondent has submitted publicly available information suggesting that the Connecticut residence is a four-bedroom, two-bathroom house with approximately 1,812 square feet of living space, and petitioner did not submit any information to refute respondent’s evidence in this respect.  Petitioner has also failed to explain why one of her sons and “three of [her] grandchildren” are currently residing with her in Connecticut.  Presumably two of the grandchildren are the students whom petitioner withdrew from respondent’s district on August 10, 2017, but there is no basis in the record upon which to make this assumption.

Although the petition must be dismissed, I note that petitioner has the right to reapply for admission to respondent’s schools on behalf of the student at any time, particularly if her living situation has changed, and to submit any documentary evidence for respondent’s consideration pursuant to 8 NYCRR §100.2(y).

THE APPEAL IS DISMISSED.

END OF FILE