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Decision No. 17,697

Appeal of K.B., on behalf of her children K.B. and K.B., from action of the Board of Education of the East Islip Union Free School District regarding residency and transportation.

Decision No. 17,697

(July 15, 2019)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Islip Union Free School District (“respondent”) that her children, K.B. and K.B. (“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 or receive transportation.  The appeal must be dismissed.

According to the record, in or about April 2015, petitioner and her family were evicted from a previous residence located within respondent’s district.  Upon being evicted, petitioner and the students moved in with relatives located outside the geographical confines of the district.  Respondent subsequently deemed the students homeless on April 27, 2015 and permitted them to attend its schools.

In April 2016, petitioner notified respondent’s transitional housing coordinator and homeless liaison (“liaison”) that she and the students had moved to another residence located outside of respondent’s district (“the out-of-district residence”).  According to the record, petitioner and the students have continued to reside at the out-of-district residence since this time.  In 2016 and 2017, the liaison conducted three home visits of the out-of-district address, during which it was observed that petitioner and her family occupied “a large portion” of that residence.

On April 19, 2018, the liaison[1] contacted petitioner via telephone.  During this telephone conversation, petitioner stated that the out-of-district address was in foreclosure.

On August 21, 2018, the liaison contacted petitioner to inquire as to her housing status.  Petitioner stated that she had received “verbal confirmation” that the out-of-district residence was in foreclosure and reported that the landlord no longer visited the residence.

On October 15, 2018, the liaison contacted petitioner for another housing update.  The liaison requested to visit the out-of-district residence and for petitioner to submit documentation to support her assertion that the out-of-district residence was in foreclosure.  Petitioner agreed to the proposed home visit, which was scheduled for the following week.

On October 24, 2018, petitioner cancelled the scheduled home visit.  Thereafter, the liaison contacted petitioner to reschedule the district’s home visit.  Petitioner stated that she would not be available for any prospective home visit, but indicated that she would leave the requested documentation concerning the out-of-district residence’s foreclosure status in an envelope outside of the house.

On November 1, 2018, the liaison visited the out-of-district residence.  According to the liaison, no one appeared to be home and no envelope was present.

On November 7, 2018, the liaison received a telephone call from petitioner who informed the liaison that she would be available to meet later that day at the out-of-district residence to deliver the requested documentation.  Upon the liaison’s arrival at the out-of-district residence, petitioner met the liaison in the driveway and stated that she was uncomfortable permitting the liaison to enter the residence because her family’s belongings were packed in boxes.  She further indicated that her family might be “kicked out or locked out any day now.”  Petitioner provided the liaison with two letters addressed to the landlord of the out-of-district residence from an attorney’s office offering foreclosure assistance.

By letter dated November 7, 2018, respondent’s assistant superintendent for instruction and personnel informed petitioner of his determination that the students were no longer homeless pursuant to McKinney-Vento and therefore, would be excluded from respondent’s schools effective December 7, 2018.

On November 20, 2018, the liaison met with petitioner to complete the paperwork necessary to appeal the district’s determination.  According to the liaison, petitioner stated that the only documentation she possessed to rebut the district’s exclusion determination was mail from the out-of-district address which was not addressed to her.  Petitioner indicated that she was reluctant to submit these documents because they might reveal her “squatter” status at the out-of-district residence.  Based on these concerns, petitioner did not submit any additional documentation to the district in response to its exclusion determination.  This appeal ensued.

Petitioner contends that, as of August 21, 2018, the out-of-district residence was in foreclosure and asserts that she and the students will soon be forced to vacate the premises.  Petitioner states that her family is suffering economic hardship and that she receives governmental assistance.  Petitioner maintains that she is currently working with a real estate office to find a home within respondent’s district.

Respondent argues that petitioner has not met her burden of proving that the students are homeless within the meaning of McKinney-Vento.  Respondent maintains that petitioner and the students have permanent, adequate housing outside of the district at the out-of-district residence and, consequently, are not homeless pursuant to 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
  1. 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 ....[2]

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).

Petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  According to the record, petitioner and the students have lived at the out-of-district residence since April 4, 2016.  As noted above, the liaison conducted three home visits in 2016 and 2017 and observed that petitioner and her family occupied a “large portion” of the out-of-district residence.  While respondent attempted to ascertain the adequacy and nature of the out-of-district residence in 2018, as described above, petitioner did not permit the liaison to enter the premises.  Moreover, petitioner does not even allege in the petition that the out-of-district residence is inadequate.  Therefore, on this record, petitioner has not met her burden of proving that the out-of-district residence is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,744; see e.g. Appeal of J.B., 56 id., Decision No. 17,115).

Nor has petitioner established that the out-of-district residence is temporary or transitional.  Petitioner asserts that her current living arrangement is temporary because it has been foreclosed and submits an order and judgment dated August 6, 2018[3] issued by New York Supreme Court, Suffolk County (Heckman, J.) confirming a referee’s report and entering judgment of foreclosure and sale to support her contention.  However, I have previously held that the mere threat of eviction due to foreclosure without a specific date as to when the premises must be vacated is insufficient to establish that a residence is temporary or transitional for purposes of a homelessness determination (see Appeal of R.D., 56 Ed Dept Rep, Decision No. 16,945; Appeal of S.D., 53 id., Decision No. 16,608).  Indeed, despite petitioner’s claim that eviction is imminent, the record reflects that petitioner and the students were still located at the out-of-district address on November 7, 2018, when petitioner refused to grant the liaison access to the out-of-district residence.  Although petitioner stated to the liaison that her family’s belongings were packed in boxes at that time, petitioner did not allow the liaison to view this alleged condition.  This appeal was commenced almost a month after the November 7, 2018 interaction between petitioner and the homeless liaison and petitioner submitted no evidence in or with the petition suggesting that eviction from the out-of-district residence was imminent.[4]

Moreover, to the extent that petitioner asserts that she is looking for affordable housing in the district and implies that she and the students intend to move back to the district at some point, this does not establish that their current residence is temporary or transitional within the meaning of Education Law §3209 (Appeal of E.R., 53 Ed Dept Rep, Decision No. 16,560; Appeal of E.M.F., 53 id., Decision No. 16,538; Appeal of a Student with a Disability, 52 id., Decision No. 16,404). 

Finally, while the record contains evidence that petitioner may be having financial problems and has sought various forms of assistance, such evidence by itself does not establish that she is homeless under State or federal law.  While it is unfortunate that petitioner’s financial situation is unstable and that may impact her ability to pay rent or locate housing within respondent’s district, this does not constitute homelessness.  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children do not apply here (Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221; see Appeal of E.B., 47 id. 94, Decision No. 15,638; Appeal of S.D., 46 id. 116, Decision No. 15,459).

Based upon the record before me, petitioner has failed to demonstrate that she and the students lack a fixed, regular and adequate nighttime 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 and the students are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.




[1] According to the record, the district’s current liaison assumed this position at some time during the events described in this appeal; in 2016, for example, another individual served as the district’s liaison.  It is unnecessary to distinguish between the former and current liaison for purposes of this appeal.


[2] Education Law §3209(1)(a-1) excludes from the definition of “homeless child” a child in a foster care placement or receiving educational services under certain provisions of Education Law §3202 or Articles 81, 85, 87 or 88 of the Education Law, circumstances not presented in this appeal.  


[3] The order was entered August 21, 2018.


[4] In this respect, I note that the court order submitted by petitioner indicated that a referee would conduct a sale of the out-of-district address by public auction within 90 days of the order (i.e., by November 6, 2018).  There is no evidence in the record as to whether this sale occurred; in any event, petitioner alleges in the instant petition that she continued to reside at the out-of-district address approximately one month after the sale was due to be scheduled.