Appeal of H.G. and R.G., on behalf of their sons, C.G. and D.G., from action of the Board of Education of the Clarkstown Central School District regarding residency and transportation.

Decision No. 16,558

(September 30, 2013)

Lexow, Berbit & Associates, P.C., attorneys for respondent, Susan Mills Richmond, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that their sons,

C.G. and D.G., are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation. The appeal must be dismissed.

At the beginning of the 2009-2010 school year, based on petitioners’ asserted residency within the district, petitioners’ sons attended respondent’s schools. By email dated November 29, 2009, petitioner R.G. advised respondent’s assistant superintendent for student learning(“assistant superintendent”) that her family was temporarily residing at the Hilton Garden Inn (“Hilton”) in Nanuet, New York, because they were “between condos.” R.G. further informed the assistant superintendent that, inter alia, the family intended to sign a lease for a rental within the district, on or about December 10, 2009 and asked that the district give her time to provide a copy of this new lease, so that her children could continue to attend their current schools for the remainder of that school year.

By email dated January 28, 2010, petitioner R.G. advised the district that the family had recently moved to a residence in Nanuet, New York, outside the district(“out-of-district residence”). Although R.G. acknowledged that the family now resided outside the district, she requested that her sons be permitted to attend respondent’s schools for the remainder of the school year. In response to this request, by letter dated February 1, 2010, the assistant superintendent advised petitioner R.G. that her son, C.G., could continue to attend respondent’s schools

for the remainder of the 2009-2010 school year, if, inter alia, petitioners agreed to pay tuition and provide transportation for him. This letter further advised petitioner R.G. that if she agreed to the terms and conditions contained within it, she was to sign, date andreturn it to the district, which she did. However, according to respondent, petitioners never paid the tuition.

Subsequently, by email dated February 9, 2010,petitioner R.G., for the first time, claimed that her sons were homeless within the meaning of McKinney-Vento and, therefore, entitled to attend the district’s schools and receive transportation.

By letter dated February 18, 2010, respondent’s director of business services (“director”) informed petitioners that a determination had been made that their sons were not homeless and, therefore, were not entitled to attend respondent’s schools. The letter stated that the basis for this determination was the fact that, inter alia, the family was permanently residing in Nanuet, New York, outside the district. The letter further stated that, unless petitioners submitted, by March 18, 2010, sufficient evidence to support their claim that their children were homeless, their children would be excluded from attendance, effective that day.

Subsequently, petitioner R.G. submitted to the district a warrant of removal, which indicated that her family was evicted from their former in-district residence, on August 27, 2009. Petitioner R.G. also submitted copies of receipts from her family’s stay at the Hilton from approximately September 3, 2009 to December 12, 2009. Based on this documentation, by letter dated March 12,2010, respondent’s director informed petitioners that the district had reversed its February 18, 2009 determination and found that their sons currently met the McKinney-Vento definition of homeless and could continue to attend respondent’s schools until June 25, 2010. However, the letter also informed petitioners that if they wanted their sons to attend respondent’s schools during the 2010-2011 school year, they would have to establish either their permanent residency within the district or that their sons continued to meet the definition of homeless.

By email dated June 22, 2010, petitioner R.G. informed the district that she wanted C.G. to attend respondent’s schools during the 2010-2011 school year as a tuition-paying student and asked the district to provide her with the tuition costs for him. Petitioner further asserted

that, pursuant to McKinney-Vento, since 2010-2011 would be D.G.’s terminal year in respondent’s middle school, he was entitled to attend that school on a tuition-free basis.

According to respondent, in September 2010, petitioner

R.G. submitted to the district a document that she claimed was a notarized lease for an in-district residence, which listed P.B. as the owner of the residence. However ,according to the record, the district did not accept this lease as proof of residency because its research showed that P.B. was not the owner of the residence.

After the district refused to accept this lease, petitioner R.G. submitted a “revised lease,” dated September 3, 2010, purportedly signed by the actual owner of the in-district residence, S.H. However, after researching the authenticity of this “revised lease,” the district learned that S.H. had never signed it. According to respondent, S.H. orally confirmed to the director’s assistant that he never rented the in-district residence to petitioners. S.H. also signed a letter dated November 3,2010, which was prepared by the director, confirming that he never rented this residence to petitioners, that he did not sign the September 3, 2010 lease and that petitioners and their sons had never lived at this residence.

The district also conducted surveillance on both the in-district and out-of-district residences. According to the investigator’s report, surveillance was conducted on the in-district residence on the mornings of November 8-10, 2010. On November 8 and 9, 2010, no vehicles were parked in the driveway and neither one of petitioners’ sons were observed exiting this residence. However, on both these dates, officials at the students’ respective schools reported that they were in attendance. On November 10,2010, no vehicles or activity were observed at the in-district residence.

Surveillance was conducted on the out-of-district residence on the afternoon of November 15, 2010 and the morning of November 17, 2010. On November 15, 2010,petitioner R.G. was observed greeting her son, C.G., as he exited a school bus at a stop near the out-of-district residence. Petitioner R.G. and her son then walked to and entered this residence. On November 17, 2010, petitioner

R.G. and both her sons were observed leaving the out-of ­district residence. Shortly thereafter, all three of them returned to this residence, then a vehicle appeared in the driveway and all three of them exited the residence and entered the vehicle, which then drove away. Officials at

the students’ respective schools both reported that C.G. and D.G. arrived late that day.

By letter dated December 22, 2010, the director informed petitioners that, based on the district’s investigation, a determination had been made that their sons were neither district residents nor homeless and, therefore, were not entitled to attend respondent’s schools. The letter stated that the basis for this determination was the fact that, inter alia, the family was permanently residing at the out-of-district residence. The letter further stated that, unless petitioners submitted, by January 10, 2011, sufficient evidence to contradict the district’s findings their children would be excluded from attendance, effective January 12, 2011.

By letter dated January 11, 2011, the director acknowledged that, by letter dated January 10, 2011,petitioners had responded to the district’s December 22, 2010 determination.1 However, the director’s letter advised petitioners that their response did not provide sufficient evidence to warrant a reversal of the district’s residency and homeless determination and, therefore, their sons would excluded from attendance after January 18, 2011. This appeal ensued. Petitioners’ request for interim relief was denied on January 31, 2011.

Petitioners contend that they were “evicted due to lack of funds from husband’s organ transplant putting us behind in bills.” They claim that their sons are homeless within the meaning of McKinney-Vento because they are living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations. Petitioners further assert that, pursuant to 42 USC §11432(g)(3)(A)(II); Education Law §3209(2)(b)(1) and 8 NYCRR §100.2(x)(2)(ii), their son, D.G., is entitled to attend respondent’s middle school for the 2010-2011 school year because it is his terminal year at this school.

Respondent argues, inter alia, that the students are not homeless within the meaning of McKinney-Vento. Respondent further contends that the students were not homeless for any of part of the time period at issue in this appeal and argues that petitioners should be required to pay non-resident tuition for their sons’ attendance at its schools for both the 2009-2010 and 2010-2011 school years.

1 The record does not include petitioners’ January 10, 2011 letter to the district.

I must first address a procedural issue. Petitioners’ claim that D.G. is entitled to attend respondent’s middle school for the 2010-2011 school year is moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest(Appeal of a Student with a Disability, 48 Ed Dept Rep 532,Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No.15,836). Since the 2010-2011 school year has ended, this claim must be dismissed as moot.

Turning to the merits of petitioners’ remaining claim that they and their children continue to be homeless, 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:

(i) sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii) abandoned in hospitals;

(iv) awaiting foster care placement; or

(v) a migratory child ... who qualifies as homeless under anyof 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 night-time location that is:

(i) a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or

(ii) a public or private place not designed for, or ordinarily used

as, a regular sleeping accom­modation for human beings ....2 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., 48id. 348, Decision No. 15,882).

On the record before me, I find that the students do not meet the definition of homeless children under either State or federal law. Petitioners submit no evidence that they and their sons 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). In fact, on the State Education Department’s form “Petition for an Appeal Involving a Homeless Child or Youth,” petitioners answered “No” to the question “Are the child’s/youth’s parent(s) or legal guardians homeless?” (see Appeal of C.K., 50 Ed Dept Rep, Decision No. 16,138).

Additionally, according to the record, since December2009, petitioners and their sons have resided in a home outside the district. Petitioners do not assert, and there is no evidence in the record, that the residence is inadequate. Thus, the record indicates that petitioners and their sons have a fixed, regular night-time residence, and petitioners have not established that such residence is inadequate. While it is unfortunate that petitioners and their sons were evicted from their in-district residence, there is no evidence in the record that their living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209.Petitioners have therefore failed to demonstrate that their sons lack a fixed, regular and adequate night-time residence and are homeless (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404; Appeals ofL.B., 50 id., Decision No. 16,129; Appeal of S.D., 47 id. 44, Decision No. 15,620).

Moreover, petitioners make no assertion and provide no evidence to establish that their current out-of-district residence is of a temporary or transitional nature. The

2At all times relevant to this appeal, the definition set forth in§3209(1)(a), as amended by Chapter 101 of the Laws of 2003, has been continuously effective.

record further shows that petitioners and their sons have been living at this residence for over three years. In addition, there is no evidence that petitioners need to vacate their current residence or that there is a time limit as to how long they and their sons can reside there(Appeal of a Student with a Disability, 52 Ed Dept Rep,Decision No. 16,404; Appeals of L.B., 50 id., Decision No.16,129; Appeal of J.U., 50 id., Decision No. 16,095).Accordingly, based on the record before me, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.

With regard to respondent’s claim regarding tuition for both students for the 2009-2010 and 2010-2011 school years, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407,Decision No. 15,737). Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737). I similarly decline to address petitioners’ liability for tuition, which should be left to the court in which an award of tuition is sought (see Appeal of a Student with a Disability, 50 Ed Dep Rep, Decision No. 16,190).

Although the appeal must be dismissed for the reasons set forth above, I am compelled to comment on respondent’s failure to comply with certain requirements of 8 NYCRR§100.2(x)(7). If, as in this case, a district disputes that a student is homeless, it must follow the dispute resolution procedures established in Commissioner’s regulations, including providing the student and/or the student’s parents an opportunity to submit information before making a final determination (8 NYCRR §100.2[x][7][ii][a]). At the conclusion of this dispute resolution process, if the district determines that a student is not homeless, it must provide written notice that the student is not entitled to attend its schools and the basis for the determination (8 NYCRR §100.2[x][7][ii][b]). The notice also must state that the determination may be appealed to the Commissioner of Education and contain the name and contact information for the school district’s homeless liaison, who is required to assist in filing such an appeal, along with a form petition(8 NYCRR §§100.2[x][7][ii][b], [iii][c][1] and [2]).

In this case, the director’s January 11, 2011 letter failed to provide the name and contact information for the district’s homeless liason. The letter also failed to 7

advise petitioners that the district’s homeless liaison is required to assist them in filing such an appeal. Additionally, the letter did not include a copy of the form petition. I remind respondent of the importance of ensuring that the educational needs of this vulnerable population is met and I admonish respondent to ensure that all such students are properly served in accordance with the State and federal requirements designed to protect their educational welfare.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioners have the right to reapply for admission to respondent’s schools on their children’s behalf at any time, particularly if their living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.

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

THE APPEAL IS DISMISSED. END OF FILE