Appeal of P.B., on behalf of his son Z.B., from action of the Board of Education of the Hadley-Luzerne Central School District regarding residency and transportation.

Decision No. 16,804

(August 3, 2015)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine A. Lanchantin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Hadley- Luzerne Central School District (“respondent”) that his son is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record reflects that Z.B.’s parents are separated and that his mother resides in the district.  In 2013, upon separating from his wife, petitioner moved to temporary housing, allegedly due to economic hardship.  It appears that Z.B. stayed with his mother but, in the summer of 2014, went to live with his father.  Apparently, in August 2014, petitioner and Z.B. moved in with a friend of petitioner’s outside respondent’s district.

On or about September 4, 2014, petitioner notified respondent that he and Z.B. were no longer living in the district and requested that they be treated as homeless.  According to the record, petitioner provided a letter dated October 23, 2014, describing his circumstances and housing status in the out-of-district residence with his friend.  Respondent did not contest petitioner’s request and Z.B. continued to attend its schools and receive transportation as a homeless student.

In or about January 2015, district staff determined, through conversations with petitioner, his wife and Z.B., that Z.B. often spends weeknights with his mother in the district when he has no transportation to his father’s friend’s out-of-district residence.  Staff also determined that Z.B. has his own bedroom at the out-of-district residence and that he could live with his mother in respondent’s district if he chose.

By letter dated February 10, 2015, respondent’s superintendent informed petitioner of his determination that petitioner’s residence outside the district was no longer temporary or transitional and also was considered fixed, regular and adequate.  The letter stated that, therefore, Z.B. was no longer considered homeless under McKinney-Vento and should be registered in the South Glens Falls School district where petitioner resided.

On February 23, 2015, petitioner advised respondent’s homeless liaison that he and Z.B. continued to be homeless and requested that Z.B. be permitted to continue to attend the district’s schools and receive transportation.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 13, 2015.

In this appeal, petitioner provides no current information, but references his October 23, 2014 letter to the district and states that his “living arrangements remain the same.”  Petitioner contends that his son is homeless within the meaning of McKinney-Vento because they share the housing of another person due to his separation and alleged economic hardship.  Petitioner maintains that his housing is temporary because he has no lease.  Petitioner explains that Z.B. prefers to live with him, rather than Z.B.’s mother because Z.B. “cannot get along.”  Petitioner notes that, at the time the appeal was commenced, petitioner and Z.B.’s mother were involved in a custody dispute in Warren County Family Court.

Respondent asserts that petitioner and his son are not homeless within the meaning of McKinney-Vento and that petitioner fails to state a claim upon which relief may be granted.  Respondent states that, provided petitioner and his wife share custody and Z.B. continues to spend time at his mother’s home in the district, he may continue to attend respondent’s schools.  However, Z.B. will not be transported to and from the out-of-district residence when he stays with petitioner.

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.

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’s son does not meet the definition of a homeless child under either State or federal law.  Petitioner argues that he is homeless because he and his son share the housing of another person due to a loss of housing, economic hardship or a similar reason.  However, other than petitioner’s conclusory statements in the October 23, 2014 letter to district staff that he became homeless due to his marital separation and has “not been able to afford my own place,” petitioner has produced no evidence to support this claim.  In fact, he states that he pays his friend for the cost of his and Z.B.’s staying with her.

Moreover, petitioner has neither alleged nor produced evidence that he and his son lack a fixed, regular and adequate night-time residence or are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).  In fact, petitioner and Z.B. are residing in a home in which Z.B. has his own bedroom.

Additionally, petitioner has not established that his living arrangement is temporary or transitional.  The petition contains only conclusory statements by petitioner that the arrangement is temporary because he has no lease.  At the time of the appeal, petitioner and Z.B. had been residing in the out-of-district home for seven months.  Petitioner has not established that the loss of his current housing is imminent or that there is a limit as to how long he and Z.B. can reside there (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608).  Indeed, according to petitioner’s October 23, 2014 letter, he can live with his friend, apparently indefinitely, until he can afford his own place.

Accordingly, based on the record before me, I cannot find that respondent’s determination that petitioner’s son is not homeless is arbitrary, capricious or unreasonable.

I note, however, that respondent states that Z.B. will be permitted to attend district schools, but not receive transportation to and from petitioner’s out-of-district residence, because he spends time at his mother’s in-district residence.  Subsequent to the submission of all pleadings and papers in this appeal, respondent submitted a copy of an April 1, 2015 custody order of the Warren County Family Court in which Z.B.’s parents were awarded joint legal custody of Z.B., with primary physical custody with Z.B.’s mother.  I have accepted the additional documentation and, to the extent that petitioner seeks Z.B.’s continued attendance in respondent’s schools as relief, the matter is academic.  However, based on the determination that petitioner and Z.B. are not homeless with respect to the out-of-district residence, respondent need not provide Z.B. with transportation to and from that residence.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for Z.B.’s admission and transportation to respondent’s schools at any time, should their living situation change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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