Appeal of T.J.G. and D.G., on behalf of their children J.G. and A.G., from action of the Board of Education of the Chenango Forks Central School District, regarding residency and transportation.

Decision No. 16,652

(August 18, 2014)

Hogan, Sarzynski, Lynch, DeWind and Gregory L.L.P., attorneys for respondent Chenango Forks Central School District, Amy J. Lucenti, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Chenango Forks Central School District (“respondent”) that their children 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.

The record indicates that, in August 2011, Hurricane Irene rendered petitioners’ in-district home uninhabitable.  As a result of the damage to petitioners’ home caused by Hurricane Irene, petitioners began living with family outside of the district. Both J.G. and A.G. were permitted to attend district schools for the 2011-2012, 2012-2013, and 2013-2014 school years.  Petitioners and their children continue to reside with petitioner D.G.’s parents outside of the district.

By letter dated May 8, 2014, respondent’s superintendent informed petitioners that as a result of the extended period of time the students have resided in the out-of-district home, and the sale of the in-district residence, J.G. and A.G. were no longer considered homeless within the meaning of McKinney-Vento and 100.2(x) of the Commissioner’s regulations.  Petitioners were also informed that J.G. and A.G. would be excluded from respondent’s schools, effective July 1, 2014.  This appeal ensued.  As interim relief, petitioners requested an immediate order permitting J.G. and A.G. to continue to attend respondent’s schools.  Following the filing of this appeal, respondent notified petitioners by letter on June 4, 2014 that J.G. and A.G. would be permitted to complete the school year in the Chenango Forks Central School District.  By letter dated June 11, 2014, petitioners were informed by my Office of Counsel that because respondent affirmed that J.G. and A.G. would be permitted to continue to attend school through the end of the school year, such request for interim relief need not be considered.

Petitioners contend that J.G. and A.G. are homeless within the meaning of McKinney-Vento and, therefore, are entitled to attend respondent’s schools.  Petitioners assert that as a direct result of the damage incurred to petitioners’ home, they were forced to sell the home in a short sale.  Petitioners assert that their presence in the out-of-district home remains temporary in nature, as guests of petitioner D.G.’s parents.

Additionally, petitioners express concern over the educational and emotional impact changing schools would have on J.G. and A.G.  Specifically, petitioners assert that forcing such a change in school attendance will have a negative impact on J.G.’s educational program pursuant to his individual education plan.  Petitioners further assert that financial hardship, endured as a result of Hurricane Irene, has hindered petitioners’ ability to return to the district.

Respondent argues that petitioners have failed to state a claim upon which relief may be granted or to provide any evidence that J.G. and A.G. are homeless within the meaning of McKinney-Vento.  Respondent contends that because petitioners have resided at the out-of-district address since 2011, and both J.G. and A.G. have their own bedrooms, petitioners do in fact have a fixed, regular and adequate night-time residence.

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 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 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...

Section 100.2(x) of the Commissioner’s regulations also 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 petitioners have not established that their children meet the definition of homeless children under State or federal law.  The record shows that petitioners, J.G. and A.G. have lived outside respondent’s district since the 2011-2012 school years.  They have a fixed, regular night-time residence and there is no evidence in the record that such residence is temporary or inadequate.  It is extremely unfortunate that petitioners’ home was flooded during Hurricane Irene and that they continue to experience economic hardship as a result.  However, based upon the record before me, petitioners failed to demonstrate that J.G. and A.G. currently lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a).  Proof of economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of G.S. and M.S., 52 Ed Dept. Rep, Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).  Accordingly, I cannot find that respondent’s determination that petitioners are not homeless was arbitrary or capricious.

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

Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission on the children’s behalf at any time and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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