Appeal of R.M., on behalf of her children W.W. and I.W., from action of the Board of Education of the Bath Central School District regarding residency and transportation.

Decision No. 16,643

(August 7, 2014)

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, John P. Lynch, Esq., of counsel

KING, JR., Commissioner--Petitioner appeals the determination of the Board of Education of the Bath Central School District (“respondent”) that her children, W.W. and I.W., are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 U.S.C. §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools.  The appeal must be sustained. 

According to the record, prior to the commencement of the 2013-2014 school year, petitioner and her children resided within the district and W.W. and I.W. attended respondent’s schools as resident students.  Petitioner alleges that, on July 6, 2013, she and her children lost their in-district home because a Village of Bath code enforcement officer condemned the property due to a “bed bug infestation.”  As a result, petitioner, her husband, and their children subsequently moved into her mother-in-law’s house, located within the Hammondsport Central School District (“Hammondsport residence”).  

According to the petition, on July 6, 2013, petitioner made a request for transportation to respondent’s district on behalf of W.W. and I.W.  Petitioner also submitted to the district a “Designation of School District Attendance for a Homeless Child” form for each child, dated August 29, 2013.  According to the record, on or about September 18, 2013, a home inspection of the Hammondsport address was conducted as a result of the family’s request for homeless status.  Attached and incorporated by reference to the petition is a copy of the home inspection report. 

According to the home inspection report, which includes photographs of the Hammondsport residence, the Hammondsport residence appeared to be in “severe disrepair.”  Regarding utilities, the report indicated that the running “water is not potable,” and two of the upstairs rooms, which the family uses for storage, are without working electricity or gas.  Additionally, the residence had “very little insulation, if at all, in the interior and exterior walls.”  With regard to the living situation, W.W. “sleeps on a mattress located in the living room” and I.W. “sleeps on a mattress located in the mother-in-law’s room.”  Petitioner’s other child, who is not yet enrolled in school, “sleeps with the mother and father in their room.”  The family shares two dressers and each family member gets one drawer for all of his or her belongings.  The report also noted that petitioner and her husband “have a whole file from DSS validating their ‘homeless’ status” and that they provided the name and contact information of their caseworker. 

By letter dated December 12, 2013, respondent’s superintendent notified petitioner of the district’s determination that W.W.[1] was not a homeless child and would be excluded from the district’s schools after January 10, 2014.[2]  The basis provided for the determination was that “[f]ollowing last week’s visits from our social worker and school resource officer, it became apparent that this is more than a temporary residency.”  This appeal ensued.  Petitioner’s request for interim relief was granted on January 3, 2014.  

Petitioner claims that she and her children, W.W. and I.W., are sharing the house of other persons due to loss of housing, economic hardship, or a similar reason, and are therefore homeless within the meaning of McKinney-Vento.  Specifically, petitioner asserts that they reside with her mother-in-law outside respondent’s district because they were forced to leave their in-district residence, which was condemned by the Village of Bath due to a bed bug infestation.  Although it is not entirely clear from the petition, petitioner appears to assert that her living situation is temporary and that her mother-in-law’s home is inadequate based upon the home inspection report.  

Respondent maintains that W.W. and I.W. are not homeless within the meaning of McKinney-Vento and requests that the petition be dismissed.  Respondent claims that the family has been residing at the Hammondsport residence, a single-family home in which the children “have their own beds,” since July 2013.    

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

(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;

1. awaiting foster care placement; or

 (v) 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

(2)    a child or youth who has a primary nighttime location that is:

(i)    a supervised publicly or privately operated shelter designed to provide temporary living accommodations including, but not limited to, shelters operated or approved by the state or local department of social services, and residential programs for runaway and homeless youth established pursuant to article nineteen-H of the executive law; or

(ii) 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).

On the record before me, I find that W.W. and I.W. fit the definition of homeless children under State and federal law.  The record establishes that petitioner, her husband, and their three children, including W.W. and I.W., relocated to petitioner’s mother-in-law’s Hammondsport residence due to loss of housing after their previous residence was condemned due to a bed bug infestation.  While the record indicates that petitioner and her family have been living outside the district since July 2013, the record also indicates that such living arrangement is inadequate.  Indeed, the home inspection revealed that the Hammondsport residence is in “severe disrepair,” with water that is “not potable” and “very little insulation, if at all, in the interior and exterior walls,” among other things.  Moreover, the record indicates that the single-family residence has insufficient space.  W.W. sleeps on a mattress in the living room and I.W. sleeps on a mattress in the mother-in-law’s room.  The family shares two dressers and each family member gets one drawer for all of his or her belongings.   Under these circumstances, I find that petitioner’s, W.W.’s, and I.W.’s current housing is temporary and transitional for purposes of McKinney-Vento and they cannot be said to have a fixed, regular, and adequate night-time residence (see Appeal of R.W., 49 Ed Dept Rep 73, Decision No. 15,962; Appeal of G.R., 49 Ed Dept Rep 50, Decision No. 15,955).  A patently inadequate residence such as this does not become a fixed, regular, and adequate night-time residence merely because of its duration.

Finally, 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, including providing and assisting in the completion of a form petition (8 NYCRR §100.2[x][7][ii][b], [iii][c][1]-[2]).

In this case, the superintendent’s December 12, 2013 letter to petitioner failed to provide the address and telephone number for the district’s homeless liaison and a copy of the form petition for commencing an appeal pursuant to Education Law §310.  Additionally, the letter failed to advise petitioner of her right to appeal and that the district’s homeless liaison is required to assist her in filing such an appeal.  

Moreover, the purported explanation for respondent’s determination contained in the December 12, 2013 letter is inadequate.  Indeed, while the letter references “last week’s visits from our social worker and school resource officer,” it fails to explain why they believed the Hammondsport residence was “more than temporary.”  Nor did respondent address the adequacy of the Hammondsport residence.  While the home inspection report references a DSS file as well as the name and contact information for the family’s caseworker, it is unclear from the record what steps, if any, respondent took following the home inspection to obtain additional information regarding the family’s living situation. 

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.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit W.W. and I.W. to attend school in the Bath Central School District without the payment of tuition and provide transportation services to W.W. and I.W.

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