Appeal of B.C., on behalf of her daughter A.C., from action of the Board of Education of the Depew Union Free School District regarding residency and transportation.

Decision No. 16,794

(July 20, 2015)

Harris Beach, PLLC, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Depew Union Free School District (“respondent”) that her daughter, A.C. (the “student”), is not homeless within the meaning of the McKinney-Vento Homeless Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and is, therefore, not entitled to attend respondent’s school or receive transportation.  The appeal must be dismissed.

At the beginning of the 2014-2015 school year, petitioner and her daughter resided within respondent’s district and A.C. attended kindergarten at a district elementary school.  As further discussed below, petitioner and A.C.’s father, who resides in the Kenmore-Town of Tonawanda Union Free School District, share joint custody of the student, as per an Erie County Family Court order.  On or around December 25, 2014, petitioner and A.C. left the district and went to Ohio.  In late December 2014 or early January 2015, petitioner and A.C. returned to New York State and began residing with petitioner’s aunt in the Buffalo City School District (“Buffalo residence”). 

On January 5, 2015, the student’s father presented the district with a Temporary Order of Custody and Visitation, dated December 26, 2014 (“December Order”), which stated that the student was to be returned to her father immediately, and that she would reside with him pending further order of the court.  Petitioner was granted only telephone access to A.C. during this time.  Respondent agreed to allow A.C. to continue attending its schools until the next court date, on January 16, 2015. 

On January 20, 2015, the court issued a new order (“January Order”) awarding petitioner custody from the end of the school day every Monday through the end of the school day every Friday (weekdays).  The student’s father has custody from the end of the school day every Friday through the end of the school day every Monday (weekends).  The January Order further stated that “both parents shall allow the child to continue to attend [respondent’s elementary school] until further order of the court.”  The order also provided that exchanges of the student would occur by her parents picking her up and dropping her off at school.  The district obtained a copy of the order on January 20, 2015. 

That same day, when petitioner was late to pick up A.C., the school principal and respondent’s Director of Pupil Personnel Services and Homeless Liaison (“director”) met with her to discuss the situation.  According to respondent, petitioner stated during the meeting that she was living in Buffalo and was planning on enrolling the student in a charter school.  When asked, petitioner characterized her Buffalo residence as “permanent,” as well as “fixed, regular and adequate.”

According to respondent, district staff were going to make a determination regarding A.C.’s residency when, on January 28, 2015, a staff person from the New York State Technical and Education Assistance Center for Homeless Students (“NYS-TEACHS”) emailed respondent’s director and advised him that petitioner claimed that she and her daughter were homeless.  The email stated that petitioner claimed she and A.C. were living in temporary housing and were “doubled up” with family in the Buffalo residence.  The email also described the court order as mandating that the student remain in school in the district, regardless of petitioner’s residence. 

By letter dated February 2, 2015, respondent’s superintendent advised petitioner and A.C.’s father that the district had been contacted by NYS-TEACHS and scheduled a meeting on February 5, 2015 to obtain additional information regarding whether the student was homeless.  In the meantime, the district agreed to provide A.C. transportation to school from petitioner’s Buffalo residence.  The February 5th meeting was rescheduled several times at petitioner’s request.  Eventually, the meeting was rescheduled for February 25, 2015; however, on that day, petitioner’s attorney called the district and indicated that petitioner could not attend due to illness.  The district offered to have petitioner participate by telephone, but petitioner’s attorney was unable to reach her.  The meeting between the district and petitioner did not take place, and petitioner did not provide the district with any further evidence regarding the student’s homelessness. 

By letter dated February 26, 2015, the superintendent notified petitioner of the determination that A.C. was neither homeless under McKinney-Vento nor a district resident.  The letter set forth the reasons for the decision and stated that the student would be excluded from school as of March 28, 2015.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 20, 2015.

Petitioner contends that her daughter is homeless within the meaning of McKinney-Vento and, therefore, is entitled to continue to attend school in respondent’s district and receive transportation.  Petitioner states that the lease on her in-district residence was not renewed at the end of December 2014 and that she is sharing housing with her aunt in Buffalo while petitioner recovers from “multiple operation[s].”  Petitioner also states that she is seeking permanent housing in respondent’s district.  Petitioner claims that the January Order states the student is not to be removed from respondent’s elementary school.  She appears to seek, as relief, some determination regarding the January Order.  Finally, in a statement attached as an exhibit to the petition, petitioner states that she was unable to attend the February 25, 2015 meeting due to her “disabilities” and because some of her medication needed adjusting.[1]  

Respondent contends that petitioner’s daughter is not entitled to attend its schools and receive transportation because she is not homeless within the meaning of McKinney-Vento and Education Law §3209.  Respondent asserts that petitioner and A.C. have a fixed, regular and adequate nighttime residence in Buffalo and also that the student’s father has a fixed, regular and adequate nighttime residence in the Kenmore-Tonawanda Union Free School District.  Respondent further asserts that the appeal must be dismissed for failure to join A.C.’s father, a necessary party, as a respondent.  Respondent contends that, to the extent that petitioner seeks an interpretation or enforcement of a family court order, the appeal must be dismissed for lack of jurisdiction.   

First, I must address a procedural issue.  Respondent asserts that the appeal must be dismissed for failure to join the student’s father as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

In this instance, I do not find that the student’s father would be adversely affected by a decision in favor of petitioner in this matter.  Currently, the student is attending school in respondent’s district and, according to the January Order, A.C.’s father picks her up there and drops her off there on the days that she is with him.  If petitioner were to prevail in this proceeding, these circumstances would not change.  Respondent’s reliance on Appeal of P.T. (49 Ed Dept Rep 457, Decision No. 16,080), in support of its position that A.C.’s father is a necessary party is misplaced.  Unlike P.T., here, the student’s father’s rights regarding custody and transportation would not be impacted if petitioner were to prevail.  Accordingly, he is not a necessary party, and I decline to dismiss the appeal on that basis.

Turning to the merits of the case, 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....

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.

Petitioner’s daughter does not fit the definition of a homeless child under either State or federal law.  On this record, I find that she has a fixed, regular and adequate nighttime residence in Buffalo, and there is no evidence in the record that the residence is temporary or transitional.  At the January 20, 2015 meeting with respondent’s staff, petitioner stated that the Buffalo residence was permanent and adequate.  The petition describes it as “a single family dwelling” and indicates that the only other person in the home is petitioner’s aunt.  There is no evidence that it is inadequate. 

Although petitioner alleges in her petition that she and the student had to leave their in-district residence due to non-renewal of her lease and some undisclosed “extreme actions addressed by the courts,” the petition does not explain the details of such proceeding and petitioner provides no further information or clarifying evidence.  Thus, I cannot conclude that petitioner is sharing housing with her aunt “due to a loss of housing, economic hardship or similar reason.”  In any event, regardless of the reason(s) petitioner had to leave her residence within the district, there is no proof in the record that petitioner lives in the kind of shelter or other accommodation described in Education Law §3209.  Nor is there evidence in the record that the student is “doubled up” at the Buffalo residence, other than petitioner’s conclusory assertion. 

Petitioner was given multiple opportunities to provide evidence of the student’s homelessness to the district and did not do so.  Although she claims that she did not attend the meeting offered by the district due to her “disabilities” and illnesses, there is nothing in the record substantiating that assertion.  Nor does she explain why she did not participate in the meeting by telephone.  Lastly, although petitioner claims that she is seeking permanent housing within the district, she provides no evidence of this.  Consequently, neither the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children nor the provisions of Education Law §3209(4) and McKinney-Vento regarding the transportation of homeless children are applicable in petitioner’s circumstances (see Appeal of S.B., 52 Ed Dept Rep, Decision No. 16,487; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108).

The January Order (which petitioner did not submit as evidence but was attached to respondent’s papers) states that “both parents shall allow the child to continue to attend the [district’s elementary school] until further order of the court....”  However, I note that respondent is not a party to that order and the order does not direct respondent to take any action, including allowing the student to attend its schools when she is not a resident or homeless under State and federal law. 

Finally, to the extent that petitioner seeks, as relief, amendment or enforcement of the January Order, the Commissioner of Education has no jurisdiction over family court matters (Appeal of R.G., 54 Ed Dept Rep, Decision No. 16,682).  Petitioner is encouraged to resolve any matters concerning the family court order in that appropriate forum.

On this record, I find respondent’s determination that petitioner’s daughter is not homeless neither arbitrary, capricious or unreasonable.

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 daughter 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