Appeal of R.T.-G., on behalf of her son S.G., from action of the Board of Education of the Green Island Union Free School District regarding residency and transportation.

Decision No. 16,942

(August 5, 2016)

Girvin & Ferlazzo, PC, attorneys for respondent, Kristine A. Lanchantin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Green Island Union Free School District (“respondent”) that her son 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 to receive transportation.  The appeal must be dismissed.

The record indicates that early in the 2015-2016 school year, petitioner resided with her son at an address within the district (“Green Island address”) and her son attended the district’s schools.  In late fall of 2015, respondent received information that petitioner’s son was not residing at the Green Island address listed on his registration forms and initiated a residency review in December 2015.  Respondent’s superintendent (“superintendent”) states that a letter was mailed to petitioner in late December 2015 informing her that, based on respondent’s preliminary investigation, she was prepared to find that S.G. was not a resident of the district and requesting that petitioner provide further information regarding residency by February 1, 2016.  The record indicates that on February 5, 2016, petitioner emailed a copy of her most current utility bill from the Green Island address, for the period October 28, 2015 through November 30, 2015, listing current charges of $12.49.

By email dated March 23, 2016, petitioner advised the homeless liaison for the district (“homeless liaison”) that “[t]here are currently some repair and plumbing issues at my house in Green Island” and “[m]ost likely the house will be going back to the bank.”  In the email, petitioner stated that “[i]n the meantime my mom has taken us in while we figure out what to do next” but also stated that “[w]e are currently part time in Green Island and part time with my mom in Watervliet.”  Petitioner stated that she and her son are “basically ... homeless at this time” and asked for the requisite forms to fill out and a home visit.  Petitioner also advised the homeless liaison that, at her mother’s house, petitioner was on a “futon in her spare room” and her son was on “the sofa.”  In an affidavit, the homeless liaison avers that she did not receive this email until March 27, 2016 and at that time was told by the junior/senior high school principal that petitioner was accompanying S.G. on a trip to France and would be out of the country until approximately April 3, 2016.  On April 4, 2016, the day S.G. returned to school, the homeless liaison provided petitioner with the requested forms which petitioner completed and returned that evening by email, indicating the date that she and her son became homeless as February 15, 2016.

The homeless liaison’s affidavit further indicates that on April 18, 2016, she conducted a home visit to petitioner’s mother’s residence during which she observed that petitioner and her son “reside with one other adult” (petitioner’s mother) in a three bedroom, one bathroom home, also stating that petitioner and S.G. “each have their own room that is not a common room.”  The homeless liaison’s affidavit also states that during the visit, petitioner informed her that the Green Island address “is in the early stages of foreclosure” which petitioner did not intend to attempt to prevent, and also that petitioner does not pay rent to her mother but helps out with household expenses.  Neither petitioner nor her mother indicated that petitioner was “unwelcome or would be asked to leave,” according to the affidavit.

By letter dated April 5, 2016, the superintendent informed petitioner of her determination that petitioner’s son is neither homeless under McKinney-Vento and Education Law §3209, nor a permanent resident of the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 9, 2016.

Petitioner contends that her son is homeless within the meaning of McKinney-Vento and, therefore, entitled to attend respondent’s schools without payment of tuition and to receive transportation.  Respondent denies these contentions and requests that the petition be dismissed.

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 her son meets the definition of a homeless child under either State or federal law. Petitioner contends that she and her son are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason.  In support of her argument, petitioner states that she and S.G. became homeless when her “furnace stopped working during a cold spell in February causing pipes to freeze/break.”  Petitioner further stated that “[w]ater backed up into the apartment causing severe damage leaving us without heat/water” and she “was not able to complete the repairs.”  She further explains that she and S.G. are currently staying with her mother at her mother’s home in Watervliet and states that her “plan once things with the house are settled and my finances are in order is to find an apartment in Green Island” for herself and S.G.  Petitioner includes photos of the pipes and water damage in the Green Island apartment[1] as well as a payment receipt dated April 30, 2016 for what appears to be rent on a storage unit for the period April 27 to May 2, 2016.

However, while respondent in its answer “admits that [p]etitioner and SG were previously determined to be homeless,” based on the allegations contained in the petition,[2] respondent “[d]enies that [p]etitioner continues to be homeless” as she and S.G. currently reside in Watervliet, in a home which is fixed, adequate, and regular, and which is no longer a temporary residence.  Petitioner has not proven that this residence is inadequate.  Indeed, according to the April 18, 2016 home visit, the Watervliet residence is a three bedroom home owned by petitioner’s mother in which S.G. has his own room, as does petitioner.  The record also shows that during the home visit, there was no indication that petitioner was unwelcome or would be asked to leave her mother’s home.  Furthermore, petitioner advised the homeless liaison that she had no intention of attempting to prevent the foreclosure of her Green Island home.

In addition, to the extent that petitioner claims that she and S.G. are sharing the housing of petitioner’s mother as a result of economic hardship based on her inability to make repairs at her home, subsequent foreclosure proceedings, and disruption to her finances, respondent contends that petitioner has not provided any proof, beyond conclusory statements, that she is experiencing financial difficulty.  In fact, respondent asserts that, contrary to these claims, both she and S.G. participated in a privately organized trip to France at the time petitioner claimed to be homeless.  Petitioner submits no reply or other evidence to refute these statements or to further explain.  In any event, 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).

Neither is there evidence in the record to suggest that their living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209 (Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537).  Although the petition is unclear, to the extent that petitioner contends that her and her son’s living arrangements are temporary or transitional in nature because they are living at her mother’s home and petitioner’s plan is to move back to the district “once things with the house are settled” and her “finances are in order,” this is insufficient to establish that her living arrangement is temporary or transitional within the meaning of Education Law §3209 (see Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404).  To the contrary, the record indicates that petitioner does not intend to prevent the foreclosure of her home or, presumably, move back there and the record contains no evidence of an attempt to return to respondent’s district (see Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404).  Also, as respondent points out, to the extent that petitioner presents a receipt for rental of a storage unit as evidence that the move is temporary, this is not determinative (see Appeal of E.B., 47 Ed Dept Rep 94, Decision No. 15,638).  In addition, there is no evidence that petitioner needs to vacate her current residence or that there is a time limit as to how long she and S.G. can reside there (Appeals of L.B., 50 Ed Dept Rep, Decision No. 16,129; Appeal of J.U., 50 id., Decision No. 16,095) as neither petitioner nor her mother indicated that petitioner was unwelcome or would be asked to leave.  Finally, statements made to the homeless liaison that petitioner does not pay rent but assists with household expenses do not, without more, demonstrate that her and S.G.’s current housing is temporary (see Appeal of J.A., 55 Ed Dept Rep, Decision No. 16,785).

While it is unfortunate that petitioner experienced plumbing and heating problems during the winter, based upon the record before me, petitioner has failed to demonstrate that her son currently lacks a fixed, regular and adequate night-time residence or that he is living in the kind of shelter or other temporary living accommodations set forth in Education Law §3209. Accordingly, I cannot find that respondent’s determination that petitioner’s son is not homeless was arbitrary or capricious.

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

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on her son’s behalf at any time and to submit any documentary evidence for respondent’s consideration.

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