Appeal of R.M., on behalf of her child J.S., from action of the Board of Education of the Deer Park Union Free School District regarding residency and transportation.

Decision No. 17,457

(July 20, 2018)

Frazer & Feldman, LLP, attorneys for respondent, Joseph Lilly, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that her child (the ”student”) is not eligible to attend the  district’s schools tuition-free  or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney- Vento”).  The appeal must be dismissed.

According to petitioner, on or about December 2015, petitioner and the student were evicted from their apartment within the district because their landlord wanted “his family to occupy the apartment” rented by petitioner.  Thereafter, petitioner and the student moved in with a friend at a location outside of respondent’s district in North Babylon, New York (“the out-of-district residence” or “the North Babylon residence”).  On or about September 8, 2016, respondent deemed the student homeless and permitted the student to continue attending its schools on a tuition-free basis.

Based on an affidavit from the attendance teacher and manager of the Office of Central Registration for the district (“the attendance teacher”),[1] in November 2016 and March 2017, the attendance teacher spoke with petitioner about her out-of-district residence.  On both occasions, petitioner admitted that she continued to reside at the North Babylon residence and that she continued to look for housing in respondent’s district.  During a phone conversation in July 2017 with the attendance teacher,   petitioner stated that her housing arrangement had not changed but she had been denied public assistance to obtain housing in the district.  Additionally, when told by the attendance teacher that, since petitioner and the student had been living at the North Babylon residence for over a year, respondent would deem her out-of-district residence to be her permanent residence and no longer consider her homeless, petitioner stated that she was being “kicked out” of the out-of-district residence in September 2017.

he attendance teacher called petitioner again on September 7, 2017.  Petitioner admitted that she and the student continued to reside at the out-of-district residence.  Surveillance was then conducted at the North Babylon residence during the weekday mornings of September 11, 12 and 13, 2017.  On each of those dates, the surveillance indicates that petitioner and the student left the North Babylon residence.   On September 13, 2017, the attendance teacher again called petitioner who admitted that she continued to reside at the out-of-district residence.  Additional surveillance was conducted on the evenings of September 11, 12, 13, 14, 20, 21, 24, 25 and 26 and on October 2, 3 and 4, 2017.   On those dates, the attendance teacher observed the same vehicle parked at the North Babylon residence in which he had observed petitioner and the student leave that residence on the mornings of September 11, 12 and 13. 

On September 19, 2017, the attendance teacher conducted a home visit at the North Babylon residence. While at the apartment, another individual who appeared to also reside at the North Babylon residence explained to the attendance teacher that petitioner “lived on the side door” and pointed to a side door of the house.  When the attendance teacher knocked on the door, no one answered.  He then called petitioner but petitioner stated “she was not home and could not come back.”   

Based on the attendance teacher’s investigation of petitioner’s living arrangements and the phone conversations with petitioner, he determined that petitioner continued to reside at the North Babylon residence and that petitioner and the student had no immediate plans to vacate the North Babylon residence.  By letter dated September 19, 2017, the attendance teacher notified petitioner that she and the student were not district residents and that the student would be excluded from enrollment effective October 6, 2017.   

Petitioner appealed this determination to respondent. A residency meeting was held on September 26, 2017 and by letter dated September 28, 2017, respondent notified petitioner of its decision that petitioner did not reside within the district and that the student would be excluded from school effective October 6, 2017.  This appeal ensued. 

Petitioner seeks a determination that the student is a homeless child entitled to attend respondent’s district without the payment of tuition and that the student is entitled to transportation.

Respondent contends that the student is neither a district resident nor homeless within the meaning of McKinney-Vento and that the district’s credibility determinations should not be overturned.  Respondent further argues that petitioner failed to state a claim for which relief can be granted and failed to meet her burden of proof, and that the district’s determination was neither arbitrary nor capricious. 

Education Law §3209(1)(a) defines “homeless child” as:

1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
3. abandoned in hospitals; or
4. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
5. an unaccompanied youth ...; or

2. a child or youth who has a primary nighttime location that is:

1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....[2]

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On the record before me, I find that the student does not fit the definition of a homeless child under State and federal law. Petitioner claims that she and the student are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of another person due to a loss of housing, economic hardship or a similar reason. In support of her argument, petitioner states that she and the student became homeless and relocated to the North Babylon residence where they reside with a friend after being evicted from their apartment in the district in December 2015 because the landlord “wanted his family to occupy the apartment.”  Since then, it appears that petitioner and the student have continued to reside at the North Babylon residence.  Respondent’s attendance teacher avers that he asked petitioner in July 2017 whether her living conditions were adequate and that petitioner responded affirmatively.  The record contains no evidence to indicate that petitioner’s living arrangement is inadequate.  To the contrary, the record reflects that petitioner told the attendance teacher that her child had an adequate place to sleep at night.  Petitioner did not submit a reply or any evidence to rebut the assertion that her living arrangement is adequate (see Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812; Appeal of T.B., 48 id. 4, Decision No. 15,774).  

Additionally, petitioner has failed to establish that her current residence is temporary or transitional.  Indeed, it was not until the attendance teacher advised petitioner that the district was going to deem the North Babylon residence to be her permanent residence, that petitioner claimed that she was going to be “kicked out” of the North Babylon residence in September 2017.  Additionally, the attendance teacher conducted surveillance on the mornings of September 11, 12 and 13, 2017 at the North Babylon residence and observed petitioner and the student leaving the apartment on each of those dates.   Although he did not observe petitioner at the North Babylon residence on September 19, 2017 when he attempted to conduct a home visit, he spoke with petitioner on that date and she admitted that she still resided at the out-of-district residence.  The surveillance belies petitioner’s assertions that she was being “kicked out” in September 2017 and there is no other evidence in the record that petitioner needs to vacate the North Babylon residence or that there is a time limit as to how long she may reside there (see Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812; Appeal of Z.P. and D.P., 54 id., Decision No. 16,639).

Based upon the record before me, petitioner has failed  to demonstrate that she or her child currently lack a fixed, regular and adequate nighttime residence or that they are 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 child is not homeless 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 admission on behalf of her child at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration. 

THE APPEAL IS DISMISSED.

END OF FILE