Appeal of C.D. on behalf of her children E.D. and J.S., from action of the Board of Education of the Eastport-South Manor Central School District, regarding residency and transportation.

Decision No. 16,402

(August 30, 2012)

Guercio & Guercio, LLP, attorneys, for respondent, Douglas A. Spencer, Esq., of counsel.

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Eastport-South Manor Central School District (“respondent”) that her children are not homeless within the meaning of the McKinney Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation. The appeal must be dismissed.

During the 2011-2012 school year, petitioner resided with her husband in respondent’s district. In her petition, C.D. asserts that on November 30, 2011, she and her two children, E.D. and J.S., left the in-district residence as a result of “domestic violence and drug abuse by” her husband and relocated to her brother’s residence outside the district.  A temporary order of protection was issued by the county court against petitioner’s husband, effective December 31, 2011 to December 31, 2012. 

By letter dated January 12, 2012, respondent notified petitioner that it had come to its attention that she and her children were not legal residents of the district and were not entitled to attend its schools tuition-free.   Respondent advised petitioner that a residency hearing was scheduled for January 26, 2012, and that she could provide information in support of her claim of residency by January 25, 2012.

On January 26, 2012 and February 2, 2012, respondent conducted a residency hearing.  In an affidavit, respondent’s assistant superintendent for personnel (“assistant superintendent”) states that at the hearing, petitioner explained that she was required to leave her former residence within the district and relocate to her brother’s residence outside the district as a result of marital issues. She provided respondent with a copy of an order of protection as proof of her reason for leaving her in-district residence.  The assistant superintendent avers that petitioner also stated that her brother did not have any other immediate family members living with him at his residence, that his residence had four bedrooms and two bathrooms, and that each of her children had their own bedroom.  Finally, the assistant superintendent avers that petitioner submitted a signed and notarized letter from her brother stating that petitioner and her children were living with him at his house rent free, and that they were welcome to stay with him until petitioner could obtain a place of her own.[1] 

By letter dated February 15, 2012, respondent advised petitioner that it had determined that her children were not homeless children and/or unaccompanied youth within the meaning of 8 NYCRR §100.2(x) and were therefore not entitled to attend respondent’s schools.  Respondent further advised petitioner of her right to appeal such determination.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 14, 2012.

Petitioner claims that her children are homeless within the meaning of McKinney-Vento and, therefore, are entitled to attend respondent’s schools and to be transported thereto.

Respondent argues that petitioner’s children are not homeless within the meaning of McKinney-Vento.

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

1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
2. 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
3. a child or youth who has a primary nighttime 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 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.

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 petitioner’s children do not meet the definition of homeless children under either State or federal law. Although petitioner asserts that she is homeless because she and her children are temporarily sharing housing with her brother, she has failed to produce evidence demonstrating that they lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).  To the contrary, petitioner submits a notarized letter from her brother stating that she and her three children have been living with him rent free since November 2011.  Further, although petitioner asserts that she is “seeking employment and trying to find a home for [her] children,” the record contains no evidence that her living arrangement is temporary.  Moreover, petitioner submits no evidence that such residence is inadequate.  To the contrary, the record indicates that her brother’s residence has four-bedrooms and two bathrooms and that both children have their own bedroom. 

While I sympathize with petitioner’s situation, I cannot find on the record before me that respondent’s determination that petitioner’s children are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to re-apply for admission on her children’s behalf at any time, particularly if her living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.