Appeal of L.P., on behalf of her granddaughter J.H., from action of the Board of Education of the North Babylon Union Free School District regarding residency and transportation.

Decision No. 16,107

(July 27, 2010)

Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the North Babylon Union Free School District (“respondent”) that her granddaughter, J.H., 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.

It is undisputed that petitioner resides within respondent’s district and that, until approximately December 2008, J.H. was a resident of the district and attended its schools.  Additionally, it is undisputed that sometime between late December 2008 and early January 2009, J.H. moved with her mother and two school-age brothers to South Carolina, where she lived until approximately January 3, 2010, when she allegedly moved in with petitioner.

On or about January 4, 2010, petitioner attempted to register J.H. in the district’s schools.  Petitioner was instructed to complete paperwork including, two affidavits, one for petitioner’s signature and the other for J.H.’s mother’s signature attesting to the transfer of custody and control of J.H. from her mother to petitioner.  Petitioner complained about the time it would take and asked whether she could get J.H. registered on an emergency basis.  Subsequently, petitioner asserted that J.H. was a homeless unaccompanied youth and she was permitted to register J.H. in respondent’s schools based on this representation.

A residency hearing was held on January 25, 2010, which petitioner and her husband (J.H.’s grandfather) attended.  At the hearing, petitioner stated that in December 2009, she brought J.H. back to New York to live with her and her husband on a temporary basis, possibly for three to four years.  Petitioner also submitted the affidavits from herself and J.H.’s mother.  The affidavit executed by J.H.’s mother indicates that the duration of the living arrangement is unclear -- that “the child will reside with . . . [petitioner] indefinitely?”  The affidavit completed by petitioner states that J.H. “will reside with me until no longer needed?”  Petitioner’s affidavit further states that J.H. is living with her because J.H. needs more supervision and attention than J.H.’s mother is able to provide.

At the hearing, petitioner asserted that J.H. is residing with her temporarily because she needs more guidance and stability than her mother can give her due to the fact that her mother works nights.  Petitioner also stated that J.H.’s mother and brothers reside in a two bedroom apartment and that her brothers attend school in South Carolina.  Petitioner further indicated that she initially registered J.H. as a homeless unaccompanied youth to expedite her enrollment in respondent’s schools, while she completed her affidavit and obtained an executed affidavit from J.H.’s mother.  Throughout the entire hearing, petitioner never claimed that J.H. was homeless nor did she state that her housing was inadequate in any way.

By letter dated January 25, 2010, the district notified petitioner that a determination had been made that J.H. was neither a district resident nor homeless, and that J.H. was not entitled to attend respondent’s schools and would be excluded from attendance effective February 5, 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 5, 2010.

Petitioner contends that J.H. is a homeless unaccompanied youth within the meaning of McKinney-Vento and, therefore, entitled to attend respondent’s schools and to receive transportation.

Respondent asserts that petitioner is not an aggrieved party and, therefore, lacks standing to maintain this appeal.  Respondent further maintains that J.H. is not entitled to attend its schools because the purported transfer of J.H.’s custody and control to petitioner is not total or permanent.  Respondent also argues that J.H. is not entitled to attend its schools because she is not a homeless unaccompanied youth.

I will first address the issue of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of Himmelberg and Little, 46 id. 228, Decision No. 15,490; Appeal of Riccinto, 46 id. 39, Decision No. 15,435).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of L.A., et al., 46 id. 450, Decision No. 15,561).  In this case petitioner, a district resident, brings this appeal on behalf of her granddaughter, who she alleges resides with her and who she attempted to enroll in respondent’s schools.  Thus, I find petitioner has sufficient standing to challenge respondent’s determination. (Appeal of E.J., 46 Ed Dept Rep 36, Decision No. 15,434; Appeal of Thomas, 41 id. 84, Decision No. 14,622).

At the time respondent made its 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. 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
3. a child or youth who has a primary night-time location that is:
4. 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 accom-modation for human beings. . . .

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

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.

J.H. does not fit the definition of a homeless unaccompanied youth under State or federal law.  Petitioner asserts that J.H. is residing with her because her mother is experiencing economic hardship.  To support her claim, petitioner explains that J.H.’s mother has moved three times in the past year and that these moves have required J.H. to change schools, which has resulted in her having poor grades.  Petitioner alleges that J.H. did not have proper sleeping arrangements in her mother’s residence but fails to submit any evidence to support this claim.  Petitioner also states that, due to her mother’s work schedule, J.H.’s mother is unable to assist J.H. with her homework and cannot give J.H. the amount of attention that she needs.  Petitioner asserts that J.H. is residing with her because she can provide a more stable environment for her than her mother can at this time.  However, petitioner has not established that J.H. lacks a fixed, regular nighttime residence, that J.H.’s current living arrangement is inadequate, or that J.H.’s living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209.  Thus, petitioner has failed to demonstrate that J.H. 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 that J.H.’s mother is experiencing economic hardship, that J.H. would have a more stable environment with her and that J.H. lacked proper sleeping arrangements at her mother’s residence, there is no evidence in the record that J.H.’s mother’s residence is inadequate, temporary or transitional.  In fact, petitioner stated at the hearing that J.H.’s mother resides in a two bedroom apartment with J.H.’s brothers in South Carolina and there is no evidence that J.H.’s mother needs to vacate this residence.  There is also no evidence that J.H. was forced to leave her mother’s residence in South Carolina due to lack of adequate housing or that she is sharing the housing of another due to loss of housing, economic hardship or similar reasons rather than her mother’s and petitioner’s preference that she reside with petitioner instead of with her mother.  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of district for homeless children are not applicable in J.H.’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 G.D. and T.D., 45 id. 191, Decision No. 15,298).

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).  Based on the record before me, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable.

Although this appeal is dismissed for the reasons described above, I must address certain procedural matters.  Section §100.2(x)(ii)(b) of the Commissioner’s regulations requires that if a district determines that the student is not homeless, it must provide the student or the student’s parents written notice that the student is not entitled to attend its schools and the basis for its determination.  The notice must also state that the district’s determination may be appealed to the Commissioner of Education.  In addition, the notice must contain the name and contact information for the district’s homeless liaison, who is required to assist the student or her parents in filing an appeal, should they wish to do so.

However, in this case, although the determination letter advised petitioner that a determination had been made that J.H. was not a district resident, nowhere does it state that a determination had been made that J.H. was not a homeless unaccompanied youth within the meaning of McKinney-Vento.  The determination letter merely implies that such a determination had been made by stating, in part, that petitioner acknowledged at the hearing that she initially registered J.H. as homeless to expedite her enrollment in respondent’s schools.  Additionally, while the determination letter advised petitioner of her right to appeal, it did not provide her with the contact information for the district’s liaison or the form petition.  I therefore remind respondent of its obligation to provide written notice of an adverse homeless determination, along with the basis for it, to the student or the student’s family and to include the contact information for its liaison and the form petition with any such notice pursuant to the provisions of Education Law §3209 and Commissioner’s regulations §100.2(x).

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

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

THE APPEAL IS DISMISSED.

END OF FILE.