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Decision No. 17,749

Appeal of M.S. and C.C., on behalf of their children J.S., S.S. and K.C., from action of the Board of Education of the Brocton Central School District regarding residency and transportation.

Decision No. 17,749

(August 30, 2019)

Harris Beach PLLC, attorneys for respondent, Marnie E. Smith, Esq., of counsel

BERLIN., Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Brocton Central School District (the “district” or “respondent”) that their three children (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and are, therefore, not entitled to attend the district’s schools or to transportation.  The appeal must be dismissed.

Petitioners resided within respondent’s district until April 2016, when petitioner M.S.[1] notified the district that the family could no longer afford to live there and would be moving in with petitioner C.C.’s mother.  The record reflects that petitioner C.C.’s mother’s house is located outside of respondent’s district in Dunkirk, New York (“the out-of-district residence” or “the Dunkirk residence”).  Respondent permitted the students to continue attending its schools through the 2015-2016 school year.

From August 2016 to January 2017, petitioners’ family moved to Bismarck, North Dakota, where the students were enrolled in school.

In January 2017, the family moved back to New York, where they again moved into the Dunkirk residence.[2]  Respondent states that petitioners were allowed to reenroll the students with the understanding that they were establishing residency within respondent’s district “very soon.”  Petitioners, however, have not resided within respondent’s district since April 2016, when they temporarily moved into the Dunkirk residence before moving to North Dakota.  Petitioners have continuously resided at the Dunkirk residence since January 2017 when they returned from North Dakota.

By letter dated February 28, 2017, respondent’s superintendent sought information from petitioner regarding petitioners’ “status of ... establishing permanent residency” within the district by April 7, 2017.  Soon after this letter was sent, the district was contacted by a representative from the New York State Technical and Educational Assistance Center for Homeless Children (“NYS TEACHS”), who claimed that the students were homeless.  In an affidavit, the district’s homeless liaison indicates that the representative related that, based upon a phone call she had received from petitioner, petitioners’ family had been doubled-up with petitioner C.C.’s brother in North Dakota.  The representative further asserted that the children were entitled to attend respondent’s district because the in-district residence was their last permanent residence.  By letter dated March 21, 2017, the district notified petitioner that the students may continue to attend the district’s schools and that transportation would continue to be provided.

On September 16, 2017, petitioner completed an “enrollment form – residency questionnaire” for the district, in which she stated that her child K.C. was currently living “[w]ith another family or other person because of loss of housing or as a result of economic hardship (sometimes referred to as ‘doubled-up’).”  Following receipt of this form, Respondent’s homeless liaison contacted petitioner, who explained that the family continued to reside with petitioner C.C.’s mother at the out-of-district residence.  The students continued to attend respondent’s schools on a tuition-free basis as homeless students during the 2017-2018 school year.

By letter dated August 20, 2018, the superintendent notified petitioner that her family has been residing at the same location since January 2017 and therefore, the district no longer believed that they qualified as homeless.  The superintendent invited petitioner to submit documentation that the family’s living situation was not fixed, regular or adequate by August 27, 2018.  Petitioner responded by email on August 24, 2018, stating that her family does not have adequate housing and that “the kids psychologically are struggling.”

By letter dated August 29, 2018 the superintendent notified petitioner that it had reason to believe that the students are not homeless and sought “documents regarding the [out-of-district residence] is not adequate” (emphasis omitted).  The August 29, 2018 letter asked specific questions of petitioner to determine if the residence in Dunkirk was fixed, regular and adequate.  These questions included whether the house had running water and electricity, where the children slept, how many people resided in the house, and how many bedrooms and bathrooms were in the house.  Petitioner was given until September 4, 2018 to submit documentation.  In response, petitioner submitted two documents, a letter that she wrote stating that the family is seeking public assistance and an “eviction notice form” dated August 29, 2018 from petitioner C.C.’s mother stating that the reason for eviction is “overcrowding and safety concerns in a two bedroom home” and that the tenants, identified as petitioners M.S. and C.C., must vacate before September 30, 2018.

By letter dated September 27, 2018, the superintendent notified petitioner of respondent’s determination that the students were not homeless because the family has continuously resided at the Dunkirk residence since January 2017.  The superintendent further reasoned that the eviction notice form, in and of itself, was insufficient to establish that the students were homeless.  The letter indicated that the students would be excluded from the district’s schools, effective October 29, 2018.  This appeal ensued.

Petitioners seek a determination that the students are homeless and, thus, entitled to attend respondent’s district without payment of tuition and receive transportation.

Respondent contends that the petition fails to demonstrate a clear legal right to the relief requested and that the students are not homeless within the definition of Education Law §3209 and McKinney-Vento.  Respondent also requests that I disregard certain evidence submitted by petitioners because it was not submitted to respondent prior to this appeal and was not authenticated.  Finally, respondent contends that petitioners fail to demonstrate that the district acted in an arbitrary or capricious manner.

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 ....[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).

On the record before me, I find that the students do not fit the definition of homeless children under State and federal law.  Petitioners claim that the family is homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of another person due to a loss of housing, economic hardship or similar reason.  Based on the record, the family has resided continuously at the Dunkirk residence since April 2016, except for August to January 2017, when they resided in North Dakota.  Petitioners describe petitioner M.S.’s chronic illness which requires “constant trips to the Cleveland Clinic” and petitioner C.C.’s job loss and struggle to find work “on a continual basis” as well as “car repairs” and “expenses” as the circumstances that led their family to become homeless.

In support of their claim of homelessness, petitioners submit 11 photographs which depict a room containing two beds; a living room containing two couches; a living room containing two recliners; two pictures of electrical outlets, one of which has tape over one of two sockets; and several pictures which appear to demonstrate a lack of storage space in the house.  Petitioners also submit an unsworn letter from petitioner C.C.’s mother, who owns the Dunkirk residence, explaining that the three children share two beds and sleep in the same room.  Additionally, petitioner C.C.’s mother states that “there is no heat in the children’s bedroom in the winter and an electric heater cannot be used for too long because of electrical problems in the house.”  According to petitioner C.C.’s mother, petitioners sleep on the recliners, including in the winter.  The letter states that the house is “overcrowded.”  Petitioners also submit an electric bill and a heating bill, presumably as evidence that the electric and heat in the house are inadequate.  However, no explanation is provided regarding these bills and I cannot conclude from a review of these bills alone that there is insufficient electricity or heat at the house.  Finally, petitioners submit evidence that they do not qualify for assistance from their local department of social services.

While their living conditions may not be ideal, petitioners have not met their burden of proving that the house they reside in is inadequate.  The record indicates that the family lives with one additional individual, and although petitioners allege there are electrical problems in the house, petitioners did not submit any evidence to corroborate this allegation.  Although two photographs depict electrical outlets, these photographs alone do not reveal any information concerning the electricity in the Dunkirk residence.  Additionally, although the house may be small, petitioners make no other allegations about the inadequacy of the house; for instance, that it is lacking an adequate bathroom, running water or a functioning kitchen (see Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeal of K.B., 56 id., 16,937).

Petitioners have also failed to establish that their current residence is temporary or transitional.  Petitioners’ family has resided at the Dunkirk residence continuously since January 2017, for more than two years.  Petitioners submit two eviction notices from petitioner C.C.’s mother, one typed and one handwritten.  Both notices state that the family needed to vacate the Dunkirk residence by September 30, 2018.  However, this contention is belied by the fact that petitioners and the students have not moved out since these eviction notices were given to petitioners.  Moreover, despite petitioner C.C.’s mother’s contention that petitioners’ family would be evicted in September 2018, petitioner C.C.’s mother submits a letter with this appeal wherein she states:  “I refuse to put [petitioners] and their children out on the street due to [petitioner M.S.’s] medical condition ....”  Thus, the two eviction notices requiring the family to vacate by September 30, 2018 are insufficient to prove that petitioners’ loss of their current housing is imminent or that the residence is temporary or transitional, particularly where petitioner C.C.’s mother has made the contradictory statement that she refuses to put the family “out on the street” (see Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,826).  Moreover, petitioners have failed to submit any evidence that they are making efforts to return to respondent’s district (see Appeal of A.B. and J.M., 56 Ed Dept Rep, Decision No. 17,096).

Finally, while petitioners have alleged that they are experiencing economic hardship, they have submitted no documentary evidence to substantiate these claims (Appeal of E.M.F, 53 Ed Dept Rep, Decision No. 16,538).  Instead, petitioner C.C.’s mother indicates that petitioners were denied assistance from the Department of Social Services and from a private social services agency because their annual income exceeds the level required to receive benefits.  In any event, economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).

While I am sympathetic to petitioner M.S.’s health concerns, based upon the record before me, petitioners have failed to meet their burden of establishing that the students currently lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other temporary living accommodations set forth in Education Law §3209.  Accordingly, I cannot find that respondent’s determination that the students are not homeless was arbitrary or capricious.

In light of this disposition, I need not consider the parties’ remaining contentions.

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 their children at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.




[1] All references to petitioner herein are to petitioner M.S. unless otherwise stated.


[2] Petitioners attach to their petition a general demographic printout on student J.S., dated January 17, 2017, which appears to have been generated by respondent.  The information sheet contains a handwritten note stating: “[t]hese students are returning from North Dakota and may be an unusual case of McKinney-Vento ... Mom says they are living in their car.”  However, the record contains no explanation regarding this document or the handwritten notation.


[3] 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.