Appeal of D.U. and C.U., on behalf of their daughter C.U., from action of the Board of Education of the Patchogue-Medford Union Free School District regarding residency and transportation.

Appeal of D.U. and C.U., on behalf of their son C.U., from action of the Board of Education of the Patchogue-Medford Union Free School District regarding residency and transportation.

Decision No. 17,681

(July 3, 2019)

Guercio & Guercio, LLP, attorneys for respondent, Kelly A. Reape, Esq., of counsel

ELIA., Commissioner.--In two separate appeals, petitioners challenge the determination of the Board of Education of the Patchogue-Medford Union Free School District (“respondent”) that their children, C.U. and C.U. (individually, “petitioners’ daughter” and “petitioners’ son”; collectively, “the students”), are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools tuition-free or receive transportation.  Because the appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

The record indicates that, prior to December 4, 2015, petitioners’ daughter was enrolled as a resident student in the district.  On or about December 4, 2015,[1] petitioners notified respondent that their family had become homeless and were temporarily living with family friends at an address outside the district (the “out-of-district residence”); petitioners’ daughter was a third-grade student at that time.  A State Education Department “STAC-202” form, Designation of School District of Attendance of a Homeless Child, completed by petitioners designated respondent as their daughter’s school district of attendance.  The student was enrolled in the district as a homeless student for the rest of the 2015-2016 school year, as well as for the 2016-2017 and 2017-2018 school years.

On or about May 17, 2017, petitioners submitted a STAC-202 form on behalf of their son, seeking to enroll him in the district’s schools for the upcoming 2017-2018 school year by designating respondent as his school district of attendance.  Petitioner’s son was enrolled in the district as a homeless kindergarten student for the 2017-2018 school year.

In letters dated May 9, June 11, and July 11, 2018, respondent’s Director of Pupil Services sought updated housing information from petitioners to determine if the students were still homeless under McKinney-Vento.  The record indicates that petitioners did not respond to those letters.

In separate letters dated July 24, 2018, respondent notified petitioners that it had determined the students were neither district residents nor homeless pursuant to McKinney-Vento.[2]  The letters explained that respondent reached this determination because petitioners had not responded to multiple letters seeking updated housing information; had been living at the out-of-district residence continually since December 4, 2015; and because their residence satisfied the McKinney-Vento criteria for permanent housing.  The letter further advised petitioners that they could appeal the decision to the Commissioner of Education within 30 days, and that if they did not file an appeal within that timeframe the students would be excluded from its schools effective August 23, 2018.

In a letter to respondent dated August 15, 2018, petitioners appealed the district’s determination to exclude the children from its schools.

On August 17, 2018, petitioners submitted a “Housing Questionnaire 2018” form for each of the children.  Petitioners identified the out-of-district residence as their current address and indicated that the children were living “[w]ith another family because of loss of housing as a result of economic hardship.”  This appeal ensued.

Petitioners contend that the students are homeless because they live with family friends due to a loss of housing and economic hardship and therefore lack a fixed, regular and adequate nighttime residence.  They request a finding that the students are homeless and, thus, entitled to attend respondent’s schools tuition-free.

Respondent argues that petitioners have failed to state a claim upon which relief may be granted and have failed to present evidence sufficient to support their claim that they are 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 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).

Based on the record before me, I find that petitioners have not established that either student meets the definition of a homeless child under State or federal law.

Petitioners assert that they and the students lack “a fixed, regular, and adequate nighttime residence” and are living with family friends at a residence outside the district “due to loss of housing, economic hardship or a similar reason.”  In an affidavit submitted in connection with this appeal, respondent’s Director of Pupil Services asserts that, “[a]ccording to a recent internet search [the out-of-district residence] is a two-story detached house that is approximately 1500 square feet in size.”  Attached as an exhibit to the affidavit is a description of the property from the Town of Brookhaven assessment roll indicating that the home is 1,518 square feet in size and has eight rooms.  Petitioners have provided no description of their living arrangements and no information about the adequacy of the out-of-district residence.  Therefore, on this record, I find that petitioners have not met their burden of proving that their current residence is inadequate (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeal of A.M., 57 id., Decision No. 17,146; Appeal of D.W., 56 id., Decision No. 16,924).

Moreover, petitioners have not established that their current residence is temporary or transitional.  Petitioners and the students have been living at the out-of-district residence, apparently without interruption, since December 2015; they do not claim or demonstrate that they must vacate the current residence or that there is a limit as to how long they may remain there (see Appeal of N.H., 58 Ed Dept Rep, Decision No. 17,432; Appeals of V.C.B., 56 id., Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987).  Further, in their August 15, 2018 appeal to respondent, although petitioners stated that they were “continuing to recover financially,” they did not indicate that they planned to vacate their current residence or would be required to do so.

Accordingly, based on the record before me, I find that petitioners have not met their burden of proving that the students lack a fixed, regular and adequate nighttime residence.  Therefore, respondent’s determination that the students are not homeless was not arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioners retain the right to reapply for admission to the district on the students’ behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEALS ARE DISMISSED.

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