Appeal of D.W., on behalf of her son Z.S., from action of the Board of Education of the Cheektowaga-Maryvale Union Free School District regarding residency and transportation.

Decision No. 16,924

(July 14, 2016)

Hodgson Russ, LLP, attorneys for respondent, Jeffrey B. Same, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cheektowaga-Maryvale Union Free School District (“respondent”) that her child (the “student”) 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 indicates that from July 2013 through early 2016, petitioner resided within the district and, accordingly, the student attended school in the district as a resident.  In February 2016, petitioner and the student relocated to the student’s grandfather’s residence outside the district, at which time the school principal informed the district’s superintendent that he had been receiving mail returned as undeliverable to the student’s in-district address on file.  The superintendent then directed the principal to send petitioner an out-of-district resident form so he could determine the residency status of the student.  The superintendent reviewed the out-of-district resident form submitted by petitioner and denied her request that the student continue to attend school in the district because petitioner allegedly stated in the form that she had moved from her in-district residence because of a dispute with a neighbor and admitted that she no longer lived in the district.[1] 

On February 5, 2016, petitioner contacted the principal and inquired about obtaining homeless status for the student.  In an email from the principal to the superintendent dated the same day, the principal recounted that petitioner had stated that she moved out of the district due to a dispute with a neighbor and that she and the student were temporarily residing outside the district with the student’s father while she tried to save money in order to relocate back to the district.  The principal stated that he had provided petitioner with the contact information for the district’s homeless liaison.  In the email, the principal opined that the student did not qualify as homeless. 

By letter dated February 5, 2016, the superintendent informed petitioner that the district had conducted an investigation into whether the student qualified as homeless under McKinney-Vento and had made a “preliminary determination” that the student did not, because petitioner had stated that she moved out of the district due to a dispute with a neighbor.  The letter informed petitioner that she could submit documentation for the district’s consideration by February 23, 2016, and that if she did not do so, the student would be excluded from school after that date.  Petitioner sent a letter to the district dated February 23, 2016, reiterating that she left her in-district residence due to a dispute with a neighbor, and also alleging for the first time that she had fallen behind in her rent payments and the landlord would not grant a month-to-month extension of her lease, and that she was therefore experiencing economic hardship.  Petitioner did not include any supporting documentation with her letter. 

By letter dated February 29, 2016, the superintendent acknowledged receipt of petitioner’s February 23^, 2016 letter, and stated he had considered it and determined that the student was not a legal resident of the district and would be excluded from the district as of March 1, 2016.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 28, 2016.

Petitioner asserts that the student is homeless within the meaning of McKinney-Vento and §100.2(x) of the Commissioner’s regulations because he lacks a fixed, regular, and adequate nighttime residence, and is sharing the housing of other persons due to economic hardship.  Specifically, petitioner states that she and the student are sharing housing with the student’s grandfather outside the district.  Petitioner indicated in her petition that she is not homeless.  Petitioner attached to her petition a letter to unidentified individuals dated March 9, 2016 asserting that due to “extenuating circumstances,” petitioner and her son had stayed with friends within the district from October 2015 through January 2016.  Petitioner also submitted an unsworn letter from this friend indicating that petitioner and her son resided at her home from October 2015 until January 2016.  Petitioner contends that she and the student then stayed with the student’s father in January and February 2016.  Petitioner asserts that she and the student subsequently moved in with the student’s grandfather outside the district and will be living there temporarily until she finds suitable housing within the district, for which she has been “actively looking”. 

Respondent asserts that its decision that the student does not qualify as homeless was not arbitrary and capricious and that petitioner has not established that the student lives outside the district in a fixed, regular, and adequate nighttime residence and therefore, he is not homeless under 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 nighttime 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’s son does not fit the definition of a homeless child under either State or federal law.  On this record, I find that he has a fixed, regular and adequate nighttime residence in his grandfather’s home.  Petitioner does not allege or provide any evidence to show that the student’s grandfather’s residence is inadequate.  Respondent submits property and tax listing indicating that the house is a two-family dwelling with six bedrooms and two bathrooms.  Petitioner did not submit a reply or any evidence to explain how the living arrangement is inadequate.

There is also no evidence in the record that petitioner’s residence is temporary or transitional.  Petitioner and the student have now been living in the residence since early 2016 and petitioner does not claim or demonstrate that she and her son must vacate the current residence or that there is a time limit as to how long she and the student can reside there (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129; Appeal of J.U., 50 id., Decision No. 16,095; Appeal of M.W., 46 id. 151, Decision No. 15,471).  Further, although petitioner claims that she is actively trying to obtain permanent housing within the district, she provides no evidence of these alleged efforts (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404).

The record indicates that petitioner originally told respondent that she had to leave her in-district residence due to a dispute with a neighbor.  She later claimed that she had to leave not only because of the dispute, but also due to her falling behind on, and inability to pay, the rent at her in-district residence.  I note that proof of economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of T.J.G. and D.G., 54 Ed Dept Rep, Decision No. 16,652; Appeal of G.S. and M.S., 52 id., Decision No. 16,388; Appeal of J.B., 50 id., Decision No. 16,221).  Emails between petitioner and her former landlord at the in-district residence dated July and August 2015 show that, while petitioner had been late on three rent payments, she did in fact make at least two of those payments and included the late fee.  The landlord also agreed to petitioner’s request for a month-to-month lease through the end of September 2015, at which point her lease would not be renewed.  While I am sympathetic to petitioner’s situation, on this record, petitioner has failed to demonstrate that she and her son currently lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209.  In fact, on the State Education Department’s form “Petition for an Appeal Involving a Homeless Child or Youth,” petitoner answered “No” to the question “Are the child’s/youth’s parent(s) or legal guardians homeless?” (see Appeal of H.G. and R.G., 53 Ed Dept Rep, Decision No. 16,558).

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).

On this record, I cannot conclude that respondent’s determination that petitioner’s son is not homeless is 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 son 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