Appeal of F.B., on behalf of her daughter M.O.B., from action of the Board of Education of the East Meadow Union Free School District regarding residency and transportation.

Decision No. 16,197

(January 20, 2011)

Jaspan Schlesinger, LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Meadow Union Free School District (“respondent”) that her daughter, M.O.B., 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 dismissed.

The record indicates that, during the 2007-2008 school year, M.O.B. attended kindergarten in respondent’s district as a resident student.  Thereafter, petitioner and her three children began living in a shelter until approximately November 2009, when they moved to their current residence outside respondent’s district.[1]  Respondent explains that, from November 2009 through June 2010, the district permitted M.O.B. to attend its schools and provided her with transportation based on petitioner’s assertions that her out-of-district residence was temporary and that she was seeking housing within respondent’s district.

On or about September 7, 2010, petitioner requested that respondent transport M.O.B. to and from her out-of-district residence for the 2010-2011 school year.  By letter dated September 13, 2010, respondent’s Assistant Superintendent for Business and Finance (“assistant superintendent”) informed petitioner that, because she had been living outside the district for approximately 10 months, she was no longer considered homeless and that M.O.B. would be excluded from school as of September 20, 2010.

This appeal ensued.  Petitioner’s request for interim relief was rendered moot when respondent agreed to permit M.O.B. to continue attending its schools and to transport her thereto pending a decision in this matter.

Petitioner contends that M.O.B. is homeless within the meaning of McKinney-Vento and, therefore, is entitled to attend and be transported to respondent’s schools.  Respondent argues that M.O.B. is not homeless within the meaning of McKinney-Vento.

Pursuant to Education Law §3209(1)(a), the definition of a homeless child includes “a child who lacks a fixed, regular, and adequate nighttime residence” as well as “a child who has a primary nighttime location” that is “a supervised publicly or privately operated shelter” or “a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.”  This language in both Education Law §3209 and section 100.2(x) of the Commissioner’s regulations conforms 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Based on the record before me, I find that M.O.B. does not fit the definition of a homeless child.  Petitioner submits no evidence that she lacks a fixed, regular and adequate nighttime residence or that she is currently living in the kind of shelter or other accommodation described in Education Law §3209(1)(a) and §100.2(x) of the Commissioner’s regulations.  While the petition contains a handwritten statement from petitioner’s “family support worker” that the “conditions of the apartment are not healthy as well as not having enough space,” petitioner submits no evidence to support this conclusory allegation.

Respondent asserts that petitioner’s residence is “habitable” and “sufficient to accommodate [p]etitioner and her children.”  To support this contention, respondent submits a document entitled “Home Visit” which was completed by the district’s social worker (“social worker”) after a September 17, 2010 visit to petitioner’s residence.  According to the report, the objective of the visit was to “verify” petitioner’s residence, which petitioner had “indicated” was “without basic utilities and therefore not adequate....”  In the report, the social worker states that she “observed the apartment to have working electricity as well as running water and bathroom,” that petitioner’s three children shared the apartment’s one bedroom and that petitioner stated that she “sleeps on one of the couches in the living room.”

In an affidavit, the social worker further explains that during this visit she observed “running water, working electricity, proper bathroom facilities, and sufficient sleeping conditions.”  The social worker also asserts:

[T]he lights were on and one of the children used a working restroom.  I observed two (2) twin beds and a crib in the bedroom where the three (3) children sleep with comforters, sheets and blankets covering the beds.  There was also a small television and an air conditioning unit in the window in the living room.  I observed ... a kitchen with a sink and other appliances, a kitchen table and couches in the living area.  Petitioner advised me that she sleeps on a couch in the living area.

Moreover, the assistant superintendent explains in his affidavit that, after receiving his September 13, 2010 letter, petitioner contacted the elementary school principal and stated that she “didn’t feel that the condition of [her out-of-district residence] was nice and/or appropriate [and] that she did not want her child to” attend school in the district in which her apartment is located.  Petitioner has submitted no reply or other evidence to refute the assistant superintendent’s assertion.

Additionally, petitioner has not established that her current living arrangement is temporary or transitional.  The petition contains only conclusory statements by petitioner that her current living arrangement is temporary because it is “a month to month tenancy.”  The record also contains a statement from petitioner’s family support worker that she is currently helping petitioner “find a new apartment,”[2] and a handwritten statement from an unidentified woman who explains that she has “been trying to look for an apartment for [petitioner and her family], but it has been kind of hard.  You only find basement apartments [illegible], and they also have to accept DSS pay.”  However, the fact that petitioner is renting a residence and may intend to move back to the district does not make the residence temporary or transitional (seeAppeal of C.K., 50 Ed Dept Rep __, Decision No. 16,138).

While it is unfortunate that petitioner felt the need to leave her residence in respondent’s district due to “domestic violence and custody issues” and that her family resided in a shelter in 2009, based on the record before me, petitioner has failed to demonstrate that she and her children lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a) and §100.2(x) of the Commissioner’s regulations.  Accordingly, I cannot find respondent’s determination that petitioner is not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE.