Appeal of J.B., on behalf of his children J.B. and T.B., from action of the Board of Education of the Sandy Creek Central School District regarding residency and transportation.

Decision No. 16,936

(July 28, 2016)

Hogan, Sarzynski, Lynch, DeWind, & Gregory, LLP, attorneys for respondent, Ed Sarzynski, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sandy Creek Central School District (“respondent”) that his children, J.B. and T.B. (“the students”), 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 tuition-free or receive transportation.  The appeal must be dismissed.

The record indicates that during the 2015-2016 school year, the students attended respondent’s schools as district residents.  On or about April 12, 2016, petitioner made a request for transportation from an out-of-district residence indicating that he and his children were no longer living in the district and were now sharing the housing of his uncle due to the loss of housing, economic hardship or a similar reason. Petitioner asserts that the previous in-district residence became unsafe, and there was a domestic issue for which the police were called. 

Petitioner asserts that he and his children are living in his uncle’s two bedroom home outside the district with his wife, his uncle, and five additional children.  The record indicates that pursuant to a custody agreement, the students, and two other siblings who are not yet of school age, reside at the home beginning on Saturday evening until Tuesday afternoon each week.  On the remainder of the days, the students and the two other siblings reside with their mother at her residence within the district.  The record further indicates that based on varying custody agreements, only one of the seven children resides at the out-of-district residence full-time and two others only reside at the home on weekends.

Petitioner asserts that this living arrangement is temporary until he and his wife can find a bigger home within the district.  Petitioner indicates that he and his wife are currently unemployed and cannot afford to move back into the district.  Petitioner also submits a statement from his uncle which asserts that the living arrangement is temporary following petitioner’s eviction from his previous in-district residence.

By letter dated April 20, 2016, respondent determined that the students are not homeless within the meaning of McKinney-Vento on the basis that there was no evidence that the students’ home was not fixed, adequate or regular, that petitioner was not sharing the housing of other persons, and that the living arrangement was not temporary.  The letter also stated that because the residence is more than 50 miles from the school, the travel distance of “over 1 hour (one-way)” is not in the students’ best interest.  This appeal ensued.  Because the record indicated that respondent permitted the students to continue to attend its schools for the remainder of the 2015-2016 school year and provided transportation, petitioner’s request for interim relief was determined to be moot. 

Petitioner asserts that the students are homeless within the meaning of McKinney-Vento and requests transportation to and from the out-of-district residence.  Petitioner seeks a determination that his children are homeless and that respondent is obligated to transport the students to and from the out-of-district residence to respondent’s schools.

Respondent maintains that petitioner has not established that the students lack a fixed, regular, and adequate night-time residence and, therefore, the students are not homeless under McKinney-Vento.  Respondent also contends that they are not sharing the housing of other persons.   Respondent further contends that because the students reside with their mother within the geographic bounds of the district on Wednesdays, Thursdays and Fridays, they cannot be considered homeless.  Respondent acknowledges in its answer that the students are residents of the district because their mother is a resident and had physical custody of them for most of each week. 

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).

Based on the record before me, I find that petitioner has not established that the students meet the definition of homeless children under State or federal law.  Petitioner does not allege or provide any evidence to explain how the residence is inadequate, and appears to argue merely that on certain days of the week additional children reside within the home.  On this record, I cannot conclude that petitioner’s living arrangement is inadequate on this ground. 

While petitioner claims that he is sharing the housing of others due to loss of housing, economic hardship or a similar reason, he makes only conclusory statements that he is facing economic hardship and does not produce any evidence to support such claims.  In any case, even if petitioner had provided such evidence, 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).  Moreover, respondent submitted evidence indicating that, contrary to petitioner’s allegation, the owner of the out-of-district residence does not reside there with petitioner’s family as he received a STAR exemption in 2015 (which is only granted on a person’s primary residence) on another residence.  Petitioner submits no reply or other evidence to refute this. 

There is also no evidence in the record that petitioner’s residence is temporary or transitional.  Petitioner does not claim or demonstrate that his family must vacate the current residence or that there is a time limit as to how long they 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).

Furthermore, the record indicates that the students reside with their mother within the geographic bounds of the district from Tuesday afternoon until Saturday evening each week.  On this record, there is no information to indicate that such residence is not regular, adequate or fixed.  Respondent contends that petitioner need only modify the custody agreement so that his children reside with their mother at the in-district residence until petitioner is able to return to the district.  On this point, I decline to opine on the parties’ parental rights and custody agreement.  However, I note that respondent acknowledges in its verified answer that the students are district residents because their mother is a district resident and has physical custody of them for most of each week.  Therefore, to the extent that the students continue to spend time at their mother’s home within the district, and that respondent does not dispute such residence, they may continue to attend respondent’s schools (Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804).  To the extent petitioner seeks the students’ continued attendance in respondent’s schools as relief, the matter is thus academic. 

On this record, petitioner has failed to demonstrate that his children lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a).  Accordingly, I cannot find that respondent’s determination that the students are not homeless with respect to petitioner’s out-of-district residence and that respondent need not provide them with transportation to and from that residence was arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for transportation on behalf of his children at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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