Appeal of M.D., on behalf of her children R.R., A.R., and K.R., from action of the Board of Education of the North Babylon Union Free School District regarding residency and transportation.

Decision No. 16,656

(August 18, 2014)

Long Island Advocacy Center, attorneys for petitioner, Diane E. Inbody, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination the Board of Education of the North Babylon Union Free School District (“respondent”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and are therefore not entitled to attend respondent’s schools or receive transportation.  The appeal must be dismissed.

The record indicates that petitioner and her children resided in the district for approximately 6 years prior to the commencement of this appeal.  However, the students’ father was laid off during 2011, and the family was subsequently evicted from their in-district residence.  The family then moved in with the children’s godmother within the district from approximately October 2011 until their godmother moved out of state in June 2012.  At that time, petitioner and her family began living in petitioner’s co-worker’s home outside the district, where they remained at the time of this appeal.  As further discussed below, the record reflects that the co-worker intends to sell the property and that it has been listed with a realty company. 

In a letter to petitioner dated May 14, 2012, respondent’s homeless liaison (“liaison”) stated that the district had learned that petitioner and her family were no longer living at the in-district residence.  The letter sought proof of residency and stated if it was not provided, a residency hearing would be scheduled.  In a letter to petitioner dated December 6, 2012, the liaison stated that as per a conversation with petitioner the day before, petitioner reported she was “paying rent” at the out-of-district residence and, therefore, the students were no longer homeless.  The letter stated that the students would be allowed to complete the 2012-2013 school year in the district’s schools and would then be excluded. 

During the summer of 2013, petitioner told respondent that she and the students would be moving to a new residence within the district prior to the start of the 2013-2014 school year.  However, this did not occur.  On or about August 16, 2013, petitioner made a request to reenroll the students in respondent’s schools.  By letter dated September 10, 2013, the liaison stated that during summer 2013, petitioner had informed respondent that the residence she was trying to secure within the district had fallen through and the family would remain in the house outside of the district.  The letter stated that as of that date, petitioner and her family had resided at the out–of-district residence for “more than one year,” and as such, the students were no longer considered homeless under McKinney-Vento and were required to register in the district in which their house was located.  The letter included a notice of petitioner’s right to appeal.  

The record indicates that a residency hearing was held on September 24, 2013 and that respondent’s assistant superintendent for business (“assistant superintendent”), the liaison, attorneys for petitioner and respondent and the owner attended.  Subsequently, by undated letter, the assistant superintendent informed petitioner that the students did not reside within the district.  The letter detailed the reasons for this finding, stating that petitioner confirmed her family had been living in a house outside the district since July 2012 and that the evidence did not support that the arrangement was “transitional, unsuitable or inadequate.”  Further, the letter elaborated that although the owner testified that she did not intend for petitioner and her family to stay for more than two weeks, the owner had allowed them to stay for 14 months at the time of the hearing. 

The letter also stated that petitioner had telephone, internet, and cable television at the house in her name and, was paying the bill for these services.  Because the owner had testified at the hearing that the family would need to vacate the house on or before October 1, 2013, the assistant superintendent deferred the decision regarding whether the students were homeless to the liaison and did not exclude the children from the district at that time.  The children were permitted to remain in the district and were provided with transportation by respondent.

By letter dated September 26, 2013, the liaison stated that the students would be able to attend the district’s schools while the district continued to investigate the matter.  The record indicates that after October 1, 2013, the liaison visited the out-of-district residence.  The liaison reported to the assistant superintendent that he observed the house to be an adequate and fixed living situation for the students. 

Thereafter, respondent scheduled a second residency hearing, which was held on December 17, 2013.  At that hearing, petitioner admitted that her family still resided in the same out-of-district home, but continued to claim that the students were homeless.  By letter to petitioner dated December 20, 2013, the assistant superintendent determined that the students were no longer homeless and were not residents of the district.  The letter stated that the students’ out of district residence was an “adequate, fixed and regular night-time residence” and that the children would be excluded from respondents’ schools on February 1, 2014.  This appeal ensued and petitioner’s request for interim relief was granted on February 5, 2014.   

Petitioner contends 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.  According to petitioner, her family has lost “permanent housing due to economic hardship.”  In support of her claim, petitioner submits an undated letter from the owner of the out-of-district house,[1] stating that petitioner and the owner have “never had an oral or written lease agreement,” and that petitioner has never paid rent to the owner.  The letter further states that the utilities for the house remain in the owner’s name and that the house is “currently” for sale.  The letter also states that it is “very necessary” that petitioner and her family vacate the property “ASAP” because it must be sold “immediately.”  Petitioner also submits a copy for the real estate listing of the out-of-district house dated September 17, 2013.  Petitioner seeks a determination that the students are homeless and that respondent violated §100.2(x) of the Commissioner’s regulations because it did not provide petitioner with a decision concerning the homeless status of the students following the September 2013 residency hearing.

Respondent contends in its answer that the students are not homeless under McKinney-Vento because they live in an adequate, fixed and regular nighttime residence.  Respondent asserts that petitioner has offered no evidence that the out-of-district residence is inadequate or that it is transitional or temporary.  Respondent argues that, although the owner of the house has repeatedly said that petitioner and her family must vacate the house so it can be sold, the family remained past the October 1, 2013 date certain testified to by the owner at the first residency hearing, and at the time of the appeal, the family had been continuously living in the house for one and one-half years.  Respondent claims that its determination in December 2013 that the students are no longer homeless was reasonable and appropriate.

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 accom-modation 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 has not established that her children met the definition of homeless children under either State or federal law.  Petitioner is currently living in a home outside respondent’s district and has been residing there for the past two years.  Petitioner alleges that the owner is currently selling the house and the record reflects that the owner has stated that petitioner and her family must vacate the premises.  However, there is no evidence in the record that any action has been taken to remove them.  Indeed, while the owner testified at the September 24, 2013 residency hearing that petitioner and her family must vacate the house by October 1, 2013, the record indicates that, as of the commencement of this appeal in February 2014, petitioner and her family are still residing in the out-of-district home.  On this record, petitioner has not established that the loss of her current housing is imminent or that there is a time limit as to how long she and her family can reside there (see Appeal of A.W., 53 Ed Dept Rep, Decision No. 16559).

The record also reflects that certain utilities at the house, including phone, cable and internet services, are listed in petitioner’s name.  Moreover, petitioner does not assert that the out-of-district residence is inadequate.  Accordingly, based on the record before me, therefore, I find that petitioner has not carried her burden of proof with respect to her claim that her current living arrangement is temporary and has failed to demonstrate that her children lack a fixed, regular and adequate nighttime residence and are homeless (see Appeal of A.W., 53 Ed Dept Rep, Decision No. 16,559).

Nor does the record support a finding that respondent violated the dispute resolution procedures in §100.2(x) of the Commissioner’s regulations.  Petitioner appears to assert that respondent violated the Commissioner’s regulations by declining to make a decision regarding whether the students remained homeless immediately following the September 2013 residency hearing.  The record indicates that, following the hearing, respondent allowed the students to continue to attend the district’s schools while respondent further investigated the matter in light of the dispute over whether the out-of-district residence was temporary and the owner’s testimony at the September 24, 2013 hearing that petitioner and her family would have to vacate the premises on October 1, 2013, a date less than one week from the date of the hearing.  The record indicates that respondent not only allowed the students to continue to attend the district’s schools, but also held another residency hearing in December 2013, after the October 1, 2013 date had passed and further investigation had been conducted.

Section 100.2(x) of the Commissioner’s regulations states that 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 must also state that the determination may be appealed to the Commissioner of Education and must 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]).  Here, the letter following the September 24, 2013 residency hearing stated that the students did not live in the district, gave the reasoning for such decision, stated that the students were not being excluded from the district at that time as the decision regarding whether they were homeless was being deferred, and gave information regarding petitioner’s appeal rights. 

A follow-up letter from respondent’s homeless liaison dated September 26, 2013, reiterated that the students would be allowed to continue to attend the district’s schools while the matter was being investigated and again stated petitioner’s appeal rights.  Both of these notices met the requirements of 8 NYCRR §100.2(x).  The students continued to attend school at all times while the investigation continued and were not excluded from respondent’s schools until after the December 2013 residency hearing, when the assistant superintendent informed petitioner by letter dated December 20 that they were not homeless and would be permitted to attend respondent’s schools until February 1, 2014.  I granted a stay on February 5, 2014.  On this record, petitioner has not carried her burden of proof with respect to this claim. 

     Based on the above, I find that respondent’s December 20, 2013 determination that the students are not homeless because they have a fixed, adequate and regular nighttime residence was reasonable and in compliance with §100.2(x) and I will not overturn it. 

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of her children in the future, should circumstances change, and to present any new

information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE