Appeal of J.U., on behalf of R.U., from action of the Board of Education of the Johnson City Central School District regarding residency and transportation.

Decision No, 16,095

(July 27, 2010)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, James A. Gregory, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Johnson City Central School District (“respondent”) that R.U. is not a homeless unaccompanied youth 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 dismissed.

Petitioner and her husband were the legal foster parents of R.U.’s mother, whose initials are also J.U. (hereinafter “J.U.”).  According to the petition, petitioner and her husband have maintained a close relationship with J.U. over the years and consider her and R.U. as members of their family.  However, they are not legally related to either J.U. or R.U.  It is undisputed that petitioner and her husband are residents of the Susquehanna Valley Central School District (“Susquehanna Valley”).

In June 2008, J.U. moved to respondent’s district (“the district”) from the City School District of the City of Binghamton (“Binghamton”).  At that time, R.U. had been enrolled in Binghamton, although he had been residing with petitioner and her husband since December 2007.  Petitioner and J.U. advised the district that R.U. was homeless and residing with petitioner due to J.U.’s loss of housing and subsequent inability to obtain adequate housing.  Based on these representations, the district determined that R.U. was homeless and permitted him to enroll in its schools on that basis.

In January 2010, the district reviewed R.U.’s homeless status.  By letter, dated January 6, 2010, the district’s assistant superintendent advised petitioner that a determination had been made that R.U. was neither a district resident nor homeless because he had steadily resided with her outside the district; petitioner was recognized by social services and other agencies as R.U.’s caregiver; social services and/or other agencies directly sent funds to her for R.U.’s care and financial support; and R.U. has a fixed, regular and adequate night-time residence with her.  The letter further informed petitioner that she could appeal this initial determination to the district.

Petitioner appealed this initial determination on the grounds that her district of residence, Susquehanna Valley, refused to enroll R.U. because it considered him homeless and, therefore, he was entitled to continue attending respondent’s schools.  Petitioner further argued that the district’s initial determination was unfair because it would require R.U. to transition to a new school and school district in the middle of the school year, which would not be in his best interest.

By letter, dated January 13, 2010, the assistant superintendent advised petitioner that his initial determination that R.U. was neither a district resident nor homeless would stand.  The assistant superintendent further informed petitioner that R.U. would be permitted to attend the district’s schools until the end of the 2009-2010 school year.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 25, 2010.

Petitioner contends that R.U. is a homeless unaccompanied youth within the meaning of McKinney-Vento and, therefore, entitled to attend respondent’s schools and to receive transportation to and from them.  Respondent denies these contentions.

At the time of respondent’s determination, Education Law §3209(1)(a)(1) defined 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:

or

(2) a child or youth who has a primary night-time location that is:

Both this provision and §100.2(x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in

In addition, §100.2(x)(1)(vi) of the Commissioner's regulations defines an unaccompanied youth as a homeless child or youth not in the physical custody of a parent or legal guardian.  The term unaccompanied youth does not include a child or youth who is residing with someone other than a parent or legal guardian for the sole reason of taking advantage of the schools of the district.  This section conforms to the definition of "unaccompanied youth" in McKinney-Vento.

R.U. does not fit the definition of a homeless unaccompanied youth under State or federal law.  The record shows that R.U. has lived with petitioner outside of respondent’s district since December 2007.  The record contains no evidence that this living arrangement is temporary or transitional or that such residence is inadequate.  In fact, in her petition, petitioner describes her residence as a regular and adequate place for R.U. to stay, perhaps indefinitely, while his mother tries to obtain adequate housing.  Thus, petitioner has failed to demonstrate that R.U. lacks a fixed, regular and adequate night-time residence and is homeless (seeAppeals of P.R., 48 Ed Dept Rep 24, Decision No. 15,781; Appeal of S.D., 47 id. 44, Decision No. 15,620; Appeal of L.F., 47 id. 39, Decision No. 15,617).

Moreover, other than petitioner’s conclusory allegations R.U. is residing with her because of his mother’s current inability to care for him and the inadequacy of his mother’s residence due to the number of bedrooms, lack of doors and other conditions, there is no evidence in the record that R.U.’s mother’s residence is inadequate, temporary or transitional.  In fact, in her petition, petitioner states that, since December 2009, R.U.’s mother has resided in a two-bedroom apartment with R.U.’s infant sibling and there is no evidence that R.U.’s mother needs to vacate this residence.  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of district and transportation for homeless children and unaccompanied youth are not applicable in R.U.’s circumstances (seeAppeal of D.R., 48 Ed Dept Rep 60, Decision No. 15,793; Appeal of N.W., 47 id. 87, Decision No. 15,635; Appeal of M.W., 46 id. 151, Decision No. 15,471).

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  While R.U. may have initially been homeless when he was permitted to enroll in respondent’s district, petitioner has not established that R.U. is currently sharing the housing of other persons due to loss of housing, economic hardship or similar reason rather than his mother’s and petitioner’s preference that he reside with petitioner instead of with his mother (seeAppeal of D.R.; 48 Ed Dept Rep 60, Decision No. 15,793; Appeal of G.D. and T.D.; 45 id. 191, Decision No. 15,298).  Accordingly, based on the record before me, I find respondent’s determination to be reasonable.

Although petitioner’s claim that R.U. is homeless must be dismissed, I note that petitioner has the right to reapply for admission on R.U.’s behalf at any time and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.