Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the City School District of the City of Johnstown regarding residency and transportation.

Decision No. 16,938

(August 1, 2016)                            

Girvin & Ferlazzo, P.C., attorneys for respondent, Tara L. Moffett, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Johnstown (“respondent”) that his daughter (“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 tuition-free or receive transportation thereto.  The appeal must be dismissed.

For the 2015-2016 school year, respondent’s Committee on Special Education (“CSE”) placed the student in an out-of-district special education classroom through its Board of Cooperative Educational Services (“BOCES”) program.  The student also received specialized transportation due to her health and medical needs.  By order dated December 21, 2015, Herkimer County Family Court awarded joint legal and physical custody of the student to petitioner, his wife (the student’s step-mother), and the student’s grandmother (“P.L.”).  P.L. resided in the district and the student lived with her, pursuant to the court order, until P.L. passed away in January 2016. 

According to respondent, following P.L.’s death, the district began receiving telephone calls from different family members claiming to be the student’s guardian.  Petitioner’s wife informed the CSE that the student’s uncle was staying with the student in P.L.’s former residence within the district and would be the primary contact regarding the student.  The district’s director of special education, pupil services, and special programs, who also serves as the district’s homeless liaison (“director”), requested and was provided with a copy of the December 2015 custody order pertaining to the student. 

By letter dated February 12, 2016, the superintendent informed petitioner that, based on the court order, petitioner and his wife, who reside outside the district, retained full custody over the student upon P.L.’s death.  The superintendent advised petitioner that, although the student had remained at P.L.’s residence within the district with her uncle, he was not the student’s legal guardian.  The superintendent gave petitioner the opportunity to meet with him and provide additional documentation regarding the student’s residency.  The letter stated that the student would be excluded from school effective February 26, 2016, if no further information was supplied.  Petitioner did not supply the district with any additional information.  By letter dated February 24, 2016, the superintendent informed petitioner and his wife of the district’s final determination that the student was no longer a resident of the district.  The letter reiterated that the student would be excluded from the district as of February 26, 2016. 

Petitioner did not appeal respondent’s residency determination.  Instead, on March 8, 2016, petitioner’s wife filed paperwork with the district requesting that the student be enrolled as a homeless student under McKinney-Vento.  The form listed petitioner and his wife under “Parent/Guardian Information” as father and step-parent of the student and the student’s uncle as her “Legal Guardian.”  The student’s address was listed as the deceased grandmother’s in-district residence.  Petitioner noted on the form that there was an order of protection, but none was provided nor was any further information given.  Petitioner also checked the box stating that the student’s residence was a foster care placement, but provided no documentation regarding this.  By letter dated March 10, 2016, the superintendent informed petitioner that, upon investigation, he had determined that the student was not homeless within the meaning of McKinney-Vento and that the student would be excluded from the district’s school on April 11, 2016.  On April 11, 2016, petitioner met with the director in her capacity as the homeless liaison to file an appeal of the superintendent’s decision.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 26, 2016.

Petitioner asserts that the student is living with petitioner’s brother in the district in the home that belonged to P.L.  Petitioner claims that they are currently looking at nursing home placements for the student within the district due to her “intensive medical needs.”  Petitioner asserts that the student is homeless because she is living in a home that is “designed to meet her significant physical needs,” her grandmother passed away, and petitioner’s home is inadequate to meet the student’s needs.  Petitioner states that the student’s parents/legal guardians are not homeless.  He also claims that the student’s uncle is providing support for her and exercising control over the student “with the support” of petitioner and his wife.  Petitioner requests “continued BOCES placement” through respondent’s district.

Respondent asserts that petitioner has failed to meet his burden of establishing that the student is homeless because he admits that the student has a fixed, regular and adequate nighttime residence.  Respondent asserts that petitioner is attempting to use the McKinney-Vento process to circumvent the district’s residency requirements.  Respondent contends that petitioner does not dispute that the student’s current home within the district is a fixed, regular and adequate nighttime residence but, instead, asserts that the student’s legal residence under the court order (petitioner’s residence outside the district) is inadequate to meet the student’s needs. 

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, the 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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner’s daughter does not fit the definition of a homeless child under either State or federal law.  Petitioner’s daughter has not lost her housing in the district.  She continues to live in her deceased grandmother’s home – albeit with her uncle.  However, upon the death of her grandmother, her status as a district resident changed.  As noted, respondent determined that the student was no longer a district resident and petitioner did not appeal that determination.  Although her grandmother’s death affected the student’s residency status for purposes of attending school tuition-free in respondent’s district, such does not render her homeless within the meaning of McKinney-Vento.  The student is living in a fixed, regular and adequate nighttime residence and petitioner has not demonstrated otherwise.  However, the student is not residing with her remaining legal guardians – petitioner and his wife.  They are physically present outside of the district and are not homeless.  Indeed, on the State Education Department’s form “Petition for an Appeal Involving a Homeless Child or Youth,” petitioner 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).

Here, petitioner presents a custody matter that more appropriately should be resolved in Family Court.  Instead, petitioner appeals under McKinney-Vento; the appeal is based solely upon petitioner’s claims that his daughter is homeless and he does not assert that she continues to be a legal resident of respondent’s district.  Therefore, that claim is not properly before me in this appeal, which seeks review only of respondent’s homelessness determination.[1] 

The record does not support petitioner’s claim that the student is homeless.  There is no basis to conclude that the student is homeless, as she is living in a fixed, regular and adequate residence.  However, because she is not living with a legal guardian, and her legal guardians under the court order have indicated that they are not homeless, I am constrained to resolve petitioner’s claims against him.

On this record, I cannot conclude that respondent’s determination that the student 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 the student in the future, should circumstances change, and to present any new information or documentation including, for example, an amended custody order, for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE