Appeal of J.L., on behalf of her children J.J., A.J. and J.M., from action of the Deer Park Union Free School District regarding residency and transportation.

Decision No. 16,811

(August 11, 2015)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that her 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 during the 2011-2012 school year, petitioner’s in-district rental went into foreclosure and she was required to relocate by September 1, 2012.  She then moved in with a friend who resided in respondent’s district but subsequently was forced to move in with the children’s grandmother at an address within the Wyandanch Union Free School District.   Petitioner’s children were considered homeless and permitted to attend district schools and receive transportation.

By notice dated May 28, 2014 petitioner was notified by the homeless liaison that the children were no longer considered homeless and that they would no longer be permitted to attend district schools effective June 27, 2014.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 2, 2014.

Petitioner alleges that she and her children are homeless and are temporarily residing with relatives until she can secure her own housing.

Respondent maintains that petitioner resides at an out-of-district single family home that is a fixed, regular and adequate night-time residence and are not homeless within the meaning of McKinney-Vento.

Education Law §3209(1)(a) defines 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).

Petitioner has failed to meet her burden of proving that her children fit the definition of homeless children under either State or federal law.  Respondent alleges that they have a fixed, regular night-time residence with their grandmother and asserts that there is no evidence in the record that such residence is inadequate.  In fact, the record indicates that the grandmother’s residence is a single family home occupied only by petitioner, her children and the children’s grandmother and petitioner offers nothing to refute this or to establish that such residence is inadequate.  While it is unfortunate that petitioner was forced to move from her in-district residence due to foreclosure, there is no proof in the record that she lives in the kind of shelter or other accommodation described in Education Law §3209.  Thus, petitioner has failed to demonstrate that her children lack a fixed, regular and adequate night-time residence and are homeless (see Appeal of T.C., 53 Ed Dept Rep, Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Nor has petitioner established that her current residence is temporary or transitional.  In this regard, petitioner states only that she is temporarily residing with relatives until she can secure her own housing.  The record indicates that petitioner has been residing with the childrens’ grandmother since June 1, 2013 and it contains no evidence that petitioner needs to vacate her current residence or that there is a time limit as to how long she can reside there. (Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129.

Accordingly, based on the record before me, I cannot find respondent’s determination that petitioner’s children are not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s schools on her childrens’ behalf at any time, particularly if their living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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