Appeal of R.W., on behalf of his niece S.S., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 15,962

(August 12, 2009)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that his niece, S.S., is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be sustained.

Petitioner claims that S.S. has been living with him since June 2008 due to her mother’s (petitioner’s sister) “extensive job travel” and “health issues.”  Specifically, petitioner asserts that S.S.’s mother was “recently diagnosed with cancer” and has been “in and out of [the] hospital.”

According to petitioner, he and S.S. lived with his wife within respondent’s district (“Baldwin residence”) until September 2008, when they were forced to leave “due to unsafe living conditions” caused by his wife’s “violent behavior.”  Petitioner claims that he is “unable” to return to his wife’s in-district residence “for safety reasons until settled by the courts.”

The record indicates that since September 2008, petitioner and S.S. have resided in Springfield Gardens (“Springfield Gardens residence”), outside respondent’s district.  Petitioner submitted an affidavit from a family friend, who states that she lives at the Springfield Gardens residence, which is owned by petitioner’s relative, and that she agreed to provide petitioner and S.S. with “temporary shelter” in her “one bedroom apartment with limited space.”  The friend explains that petitioner sleeps on the floor on an inflatable mattress and that S.S. sleeps on the couch.

On or about September 3, 2008, petitioner and S.S.’s mother met with respondent’s Director of Pupil Services (“director”) and Registrar and Residency Investigator (“investigator”) to register S.S. in respondent’s schools.  Among the evidence presented at this meeting was a custodial affidavit in which petitioner stated that S.S. lived with him at the Baldwin residence.  S.S.’s mother submitted a parent affidavit stating that she had relinquished custody and control of S.S. to petitioner pursuant to an “Authorization for Temporary Guardianship of Minor” (“authorization”).[1]  By letter dated September 11, 2008, the director informed petitioner that S.S. was not a district resident and would be excluded from respondent’s schools effective September 17, 2008.

Respondent claims that on or about September 12, 2008, the investigator received an anonymous call stating that petitioner had vacated the Baldwin residence pursuant to a court order.[2]  Respondent subsequently commenced an investigation into S.S.’s residency during which S.S. was observed leaving the Springfield Gardens residence on three mornings and a car registered to S.S.’s mother was present at that address.  In addition, respondent’s director received an unsworn letter from petitioner’s wife dated September 16, 2008, which stated that petitioner vacated the Baldwin residence on September 8, 2008 and that S.S. had never resided there.

At a September 15, 2008 meeting with the director and registrar, petitioner admitted that he and S.S. were living outside respondent’s district, but would be moving to an in-district residence that week.  By letter dated September 19, 2008, the director informed petitioner that S.S. was not a district resident and would be excluded from respondent’s schools effective September 25, 2008.  On or about September 26, 2008, petitioner submitted a new registration form in which he claimed that he and S.S. were homeless.

Thereafter, respondent commenced a second residency investigation, which revealed, among other things, that S.S.’s mother was regularly present at the Springfield Gardens residence and that the utilities and telephone service for that residence are registered in her name.

On or about January 27, 2009, petitioner and S.S.’s mother again met with the director and investigator.  According to the director’s and investigator’s affidavits, petitioner admitted that he and S.S. continued to reside outside the district with S.S.’s mother, who “had taken ill and had been unable to work.”  In a letter dated the same day, the director informed petitioner that S.S. was not a homeless student or a district resident and would be excluded from respondent’s schools on February 27, 2009.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 9, 2009.

Petitioner asserts that S.S. is a homeless child within the meaning of McKinney-Vento and is therefore entitled to attend respondent’s schools and receive transportation.  Petitioner claims that he and S.S. lack a fixed, regular and adequate night-time residence and that they are sharing the housing of other persons due to loss of housing.  Petitioner claims that he and S.S. were forced to leave their in-district residence due to “unsafe living conditions” caused by discord in petitioner’s marriage.  Petitioner asserts that S.S.’s current housing is inadequate because he and S.S. are living in a friend’s one-bedroom apartment in which S.S. sleeps on the couch and he sleeps on the floor on an inflatable mattress.

Respondent disputes that S.S. is homeless within the meaning of McKinney-Vento and also contends that petitioner has not established that S.S. is a district resident.

Education Law §3209(1)(a) defines a homeless child as:

1. a child or youth who lacks a fixed, regular, and adequate night-time residence, including a child or youth who is:

1. 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;
   4. awaiting foster care placement; or
   5. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; 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 ....

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.

Under the circumstances presented in this case, I find that S.S. fits the definition of a homeless child under State and federal law.  The record indicates that S.S. does not have a fixed, regular and adequate night-time residence.  While the record indicates that petitioner and S.S. have been living outside respondent’s district since September 2008, there is also evidence that such living arrangement is inadequate.  Indeed, in a sworn statement, the family friend explains that her one-bedroom residence has “limited space” and that petitioner sleeps on an inflatable mattress and S.S. sleeps on the couch.  Moreover, the record also contains evidence that this living arrangement exists because petitioner and S.S. were forced to leave their in-district residence due to domestic discord.  Under these circumstances, it is apparent that petitioner’s and S.S.’s housing is temporary and transitional and they cannot be said to have a fixed, regular, and adequate night-time residence (seeAppeal of G.R., 49 Ed Dept Rep __, Decision No. 15,955). 

Pursuant to §100.2(x) of the Commissioner’s regulations, a homeless student is entitled to attend school in his or her school district of origin, which is defined as the school district “in which the homeless child was attending a public school on a tuition-free basis or was entitled to attend when circumstances arose which caused such child to become homeless” (8 NYCRR §100.2[x][1][iii]).  In the instant appeal, petitioner claims that S.S. began living with him within respondent’s district in June 2008.  While respondent denies that S.S. was entitled to attend its schools prior to becoming homeless, respondent admits that S.S. “attended the Baldwin Schools prior to becoming homeless ....”  As a result, I find that, upon becoming homeless in September 2008, S.S. was entitled to designate respondent’s district as her school district of origin.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit S.S. to attend school in the Baldwin Union Free School District without the payment of tuition and provide transportation services to S.S.

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