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Decision No. 17,731

Appeal of D.D. and M.D., on behalf of their children J.D. and J.D., from action of the Board of Education of the Miller Place Union Free School District regarding residency.

Decision No. 17,731

(August 14, 2019)

             Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ELIA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Miller Place Union Free School District (“respondent”) that their children (“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.  The appeal must be dismissed.

The students were enrolled in respondent’s district for over 10 years.  According to an affidavit submitted by respondent’s local educational agency liaison for homeless children and youth (“homeless liaison”), on or about February 25, 2019, the homeless liaison learned that a family attempted to register their children using an address that was on file with the district and listed as petitioners’ residence (“the in-district address”).  The homeless liaison contacted petitioner M.D. regarding the discrepancy, and petitioner M.D. stated that petitioners had sold their home in December 2018 and moved to an address located outside of respondent’s district (“the out-of-district address”) and had a two-year lease.  Petitioner M.D. did not provide a mailing address for the out-of-district address nor did they provide any documentation including the lease.  According to the homeless liaison, petitioner M.D. did not indicate at that time that she or the students had been, or were, homeless.

On March 6, 2019, a residency hearing was held and was attended by the superintendent, homeless liaison, high school principal and petitioner M.D. to discuss the students’ residency.  According to the homeless liaison, petitioner admitted at this hearing that the children had been residing at the out-of-district address since January 2019.

In a letter dated March 8, 2019, the superintendent determined that the students were not district residents and could not attend its school on a tuition-free basis.  This letter indicated that the students could remain enrolled until March 29, 2019, so long as petitioners provided transportation to and from school, the students were in school on time without a pattern of lateness, and petitioners completed the procedure to enroll the students in their new home school district.  Petitioners did not appeal respondent’s March 8, 2019 determination that the students are not district residents.  Therefore, that decision has become final and binding on petitioners for purposes of this appeal (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165; Appeal of Laventure-Louis and Louis, 56 id., Decision No. 17,027).

According to the homeless liaison, on or around March 26, 2019, petitioner M.D. contacted her to officially change her address to the post office box address which she had disclosed to the district in December 2018.  During this phone call, petitioner asserted, for the first time, that she and the students had been homeless for a period in January 2019 when they lived in a hotel.  That same day, petitioner submitted documentation which appeared to show that petitioners made a reservation at a hotel from December 31, 2018 through January 13, 2019.  According to the homeless liaison, when asked if she could provide any documentation proving that she and the students had actually stayed at the hotel, petitioner M.D. stated:  “this is all I have to give to you.”

In a letter to the homeless liaison dated April 1, 2019, petitioners alleged that the students had been homeless and asserted that they “had the right ... to finish this school year and the following year if they are graduating ....”  While not entirely clear, petitioners alleged that they had left the in-district address and, after plans to relocate to another location fell through, “had to stay with family and at a hotel” until they secured the out-of-district address.  Petitioners enclosed a copy of a rental agreement for the location to which petitioners had planned to relocate.  Specifically, petitioners asserted that when petitioner M.D. failed to provide the landlord with bank account or paystub information, the landlord refused to rent to petitioners.

In a letter dated April 2, 2019, the superintendent informed petitioners of her decision that the students were not homeless as defined by the McKinney-Vento Act because they resided at the out-of-district address, which was an adequate, fixed, and regular night-time residence.  The letter indicated that the students would be entitled to attend respondent’s schools through May 1, 2019.  This appeal ensued.

Petitioners assert that their children were homeless for a period of two weeks during the 2018-2019 school year.  Petitioners argue that, due to this alleged period of homelessness, the students are entitled to attend respondent’s schools for the remainder of the 2018-2019 school year.  Petitioners request a determination that the children are entitled to finish the 2018-2019 school year within respondent’s schools.

Respondent argues that petitioners have failed to state a claim upon which relief can be granted and that the appeal must be dismissed as moot.  Respondent further asserts that the students do not meet the definition of a homeless child under state or federal law.  Respondent contends that petitioners merely indicate that they were previously homeless and do not assert that the out-of-district residence, where they currently reside, is inadequate.

To the extent petitioners ask that the students be allowed to attend respondent’s schools for the remainder of the 2018-2019 school year, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Pursuant to McKinney-Vento and State law, the students were entitled to immediate enrollment in respondent’s district and to remain enrolled pending final resolution of any appeals (42 USC §11432[g][3][E]; Education Law §3209[5][c]).  There is no evidence in the record that the students were improperly excluded from respondent’s schools during the pendency of this appeal, and since the 2018-2019 school year has ended, petitioner’s claim relating to such school year is moot (see Appeal of A.L., 58 Ed Dept Rep, Decision No. 17,442; Appeal of J.S., 57 id., Decision No. 17,134).

Even if the appeal were not dismissed as moot, it would be dismissed on the merits.  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 ....[1]

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 failed to meet their burden of proof and have not established that the students are homeless under state or federal law.  The record shows the children may have had to stay for a period of two weeks at a hotel after their house was sold and a subsequent rental arrangement failed to materialize sometime during the 2018-2019 academic year.  The respondent correctly points out that the petition is devoid of any supporting documentation that would show the hotel stay was inadequate.  It is further unsupported that the children were present with petitioners during the two-week hotel stay from December 31, 2018 through January 13, 2019.  Petitioners supplied no further documentation, receipts of expenses or bills to support that the children were living in the hotel with them.  Petitioners only provided a forwarded copy of a March 25, 2019 e-mail confirmation of reservation.  Even if the living conditions at the hotel were determined to be inadequate, petitioners do not deny that this living arrangement was temporary for two weeks and has since ended.  Since the children now reside at a different fixed address, the evidence offered by petitioners is no longer a factor to be considered in the determination of whether the students are currently homeless.

Turning to the students’ current living arrangements it appears based on the record before me that the children currently reside at the out-of-district residence of their sister.  The petition contains no indication or documentation that would support that their current living conditions at this residence are temporary or transitional in nature or has a fixed time limit for how long they may remain there (see Appeal of J.S., 57 Ed Dept. Rep, Decision No. 17,134; Appeals of S.R., 56 id. Decision No. 16,987; Appeal of A.N.Z., 53 id. Decision No. 16,537).  The petition is also devoid of any description of the living conditions at this residence.  There has been no documentation provided that would lead me to conclude it is inadequate for the students.  Thus, petitioners have not met their burden of proving that the students lack a fixed, regular, and adequate night-time residence (see Appeal of S.Y., 57 Ed Dept. Rep, Decision No. 17,138; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of D.W., 55 id., Decision No. 16,812).

To the extent petitioners raise the issue of entitlement to the “terminal year” provisions of State law, this claim is without merit.  Education Law §3209(2)(c) outlines three circumstances under which a “homeless child shall be entitled to attend the schools” of a district.  Under each circumstance, a student shall be entitled to attend the school district of origin or location, as applicable,

for the duration of homelessness and until the end of the school year in which such child becomes permanently housed and for one additional year if that year constitutes the child’s terminal year in such building.

As this provision indicates, a student’s entitlement to remain in a school building for his or her terminal year is contingent upon a finding that he or she was, in fact, homeless.  Here, the record supports the finding of the district that the children are not homeless under the law.  Therefore, the terminal year provision of State law does not apply in this case.

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




[1] 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.