Appeal of L.S., on behalf of her son D.K., from action of the Board of Education of the Sewanhaka Central High School District regarding residency and transportation.

Decision No. 16,929

(July 19, 2016)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

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

Petitioner asserts that she became homeless in March 2013, when she was evicted from her residence in Elmont, New York (“first Elmont address”), within respondent’s district.  The record indicates that at that time, D.K. attended elementary school at the Elmont Union Free School District, which serves students through sixth grade.[1]  On September 2, 2015, petitioner made a request for enrollment in respondent’s schools on behalf of D.K., listing an address in the Hempstead Union Free School District as her current residence (“Hempstead address”) and the Valley Stream Central High School District (“Valley Stream”) as the school district where D.K. was last enrolled.[2]

By letter dated September 28, 2015, respondent informed petitioner that D.K. would be excluded from its schools effective October 15, 2015 based on “Actual residence elsewhere; and/or Under McKinney-Vento Act [respondent’s district] is neither the school district of residence and/or the district of origin.”

Petitioner appealed this determination and an administrative review was held on November 6, 2015.  According to respondent, at the review, petitioner testified that she lives with her three children, including D.K., but does not have a permanent residence and stays at “different places” in Hempstead, Elmont, and Queens.  She testified that she hired a realtor and submitted a letter from the realtor stating that she is “trying to find [petitioner] an apartment in Elmont.”  Petitioner also introduced unsworn letters from “Jane Smith” and “Irma Holland,” indicating that petitioner stays with them in Hempstead and Elmont, respectively.  According to the letter from Jane Smith, petitioner and her children “reside with me from time too [sic] time, but at this point there is no space for them.”  According to the letter from Irma Holland, petitioner and her children “stays [sic] with me from time to time at my residen[ce] in Elmont.  They are unable to have permanent residen[ce], because this is not enough living space.”  When questioned as to their addresses, petitioner testified that Jane Smith resides at the Hempstead address.  Petitioner did not provide an address for Irma Holland in Elmont (“second Elmont address”), instead testifying that Ms. Holland was “moving and I’m gonna go with her.  We’re in the process of switching residence right now.  So there’s no specific address right now to give you.”  Petitioner further testified that D.K. visits his father in Staten Island on the weekends.

Respondent produced testimony from an investigator who conducted surveillance during the 2013-2014 school year, on behalf of the Elmont Union Free School District, an elementary district serving students from pre-kindergarten through sixth grade (“Elmont”), where D.K. was enrolled in sixth grade.   The investigator testified that his investigation, which included surveillance on the Hempstead address, revealed that petitioner and her children resided at the Hempstead address.  As a result, both of petitioner’s children were excluded from Elmont in March 2014, but were allowed to complete the school year in Elmont.

Petitioner testified that her children subsequently attended Valley Stream for the 2014-2015 school year based on her claim that they were staying with a friend in Valley Stream.  However, according to petitioner, her friend “basically moved, down south” and petitioner’s children were ultimately excluded from Valley Stream, effective June 2015.

Respondent’s investigator testified that he was hired by respondent following petitioner’s request for enrollment in respondent’s district in September 2015.  He conducted surveillance on the Hempstead address on nine early-morning occasions – September 10, 16, 17, 18, 21, 22, 24, 25, and November 6, 2015 – and each morning observed petitioner exit the Hempstead address and enter her vehicle.  He also observed D.K. exit the house and enter the vehicle on all but two occasions, when D.K. was absent from school.

By letter dated December 22, 2015, the administrative review officer notified petitioner of her determination that D.K. would be excluded from respondent’s schools effective January 29, 2016.  The basis for the determination was that “the student is neither a resident of the [district] nor entitled to attend as a homeless child under the provisions of Section 100.2(x) of the Commissioner’s Regulations.”  Specifically, the administrative review officer found that D.K. resides with petitioner at the Hempstead address, and, “other than [petitioner’s] bare assertions, there is no evidence in the record that this residence is indeed ... temporary and/or inadequate.”  Specifically, the administrative review officer found that:

The surveillances together with the two previous exclusions where both the Elmont Union Free School District and Valley Stream schools conducted investigations and found that [petitioner and D.K.] resided at [the Hempstead address] create overwhelming evidence that [they] have in fact, resided at [the Hempstead address] for what appears on the record to be almost two years.  [Petitioner] never appealed either of these determinations.

The administrative review officer further found that, even if petitioner was homeless, Valley Stream – not respondent’s district – is the school district of origin under McKinney-Vento since, according to petitioner’s own testimony, petitioner became homeless when the friend with whom she resided in Valley Stream moved.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 24, 2016.

Petitioner contends that she and D.K. are homeless within the meaning of McKinney-Vento because they share the housing of another person due to economic hardship or a similar reason.[3]

Respondent argues that petitioner and D.K. are not homeless within the meaning of McKinney-Vento, and that, even if they were homeless, respondent’s district is not the district of origin.  Respondent maintains that its determination is rational and supported by the record.

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 State or federal law.  Petitioner asserts that she has been homeless since she was evicted from the first Elmont address in March 2013.  Petitioner appears to claim that she is temporarily residing at both the Hempstead address and the second Elmont address, which she claims are inadequate because there is insufficient space and her children share a bed in both locations.  Petitioner testified in her administrative review hearing that the Hempstead address is a two-family home with three bedrooms upstairs and three bedrooms downstairs, and that Jane Smith lives there with her two children and petitioner lives there with her three children, but there is not enough room for her family to reside at that address permanently.  Petitioner testified that her children are more comfortable at the Hempstead address so they stay there about three days per week, and they stay in Queens once or twice a week.  I note that, other than her testimony at the administrative review hearing, petitioner submits no evidence on this appeal regarding any residence in Queens.

In her petition, petitioner alleges that the Hempstead address is a second-floor home at which seven people reside and that her children are sharing a room with one other child.  Petitioner also alleges that the second Elmont address is a “one floor” home at which eight people allegedly reside and that her children share a bedroom with two other children.  Petitioner asserts that her children share a bed in both locations.  However, other than petitioner’s conclusory assertions that her family lacks sufficient space, there is no evidence in the record that either residence is inadequate (see Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812; Appeal of S.T., 53 id., Decision No. 16,619; Appeal of T.B., 48 id. 4, Decision No. 15,774).  Moreover, respondent notes that the phone number provided for Jane Smith in her letter regarding the Hempstead address is actually a landline for a different address in Hempstead other than the one provided by petitioner.  Petitioner did not submit a reply or any evidence to rebut or explain this inconsistency or to explain how the living arrangement is inadequate.

Additionally, petitioner has not established that her living arrangement is temporary or transitional.  Contrary to petitioner’s allegations in the petition that she is residing at the Elmont and Hempstead addresses, the record indicates that D.K. has resided with petitioner at the Hempstead address since at least the 2013-2014 school year when Elmont first commenced a residency investigation which included surveillance on the Hempstead address.  During respondent’s surveillance of the same address in September and November 2015, petitioner was observed exiting the residence on all nine surveillance mornings, and D.K. was observed on all but two of those mornings (when he was also absent from school).  Although petitioner submits an unsworn letter from a realtor indicating that petitioner is looking for an apartment in Elmont, petitioner has provided no evidence to sufficiently rebut or explain the evidence produced by respondent, including respondent’s surveillance evidence.

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

In light of this disposition, I need not consider the parties remaining contentions.

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 child’s behalf at any time, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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