Appeal of B.B., on behalf of her children A.H. and S.H., from action of the Board of Education of the Onondaga Central School District regarding residency and transportation.

Decision No. 17,497

(August 31, 2018)

Bond, Schoeneck & King PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ELIA., Commissioner.-- Petitioner appeals the determination of the Board of Education of the Onondaga Central School District (“respondent”) that her children A.H. and S.H. (“the students”)[1]  are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.   The appeal must be dismissed.

The record reflects that prior to the events leading to this appeal, petitioner and the students resided in respondent’s district.   At some point, petitioner lost her in-district housing and, in 2012, petitioner’s oldest child was designated as homeless pursuant to McKinney-Vento and continued to attend school in respondent’s district.  In 2013, petitioner’s three other children, including the students, were also designated as homeless students pursuant to McKinney-Vento and enrolled in school in the district.  During the 2013-2014 and 2014-2015 school years, petitioner informed respondent that she and her children were doubled-up in the home of a family member outside the district.  On that basis the students continued to be enrolled as homeless students during those years.

In August 2015, petitioner informed respondent that she and her children had relocated and were doubled-up with another family member (her aunt) also located outside the district.  Based on her assertion that she and her children were doubled-up, respondent continued to consider the students homeless for the 2015-2016, 2016-2017 and 2017-2018 school years and permitted them to attend school in the district.

According to respondent, on a number of occasions petitioner was afforded the opportunity to explain how residing with her aunt rendered her housing inadequate and she failed to do so, other than stating that her family was doubled-up.  Thereafter, by letter dated June 6, 2018, respondent’s superintendent informed petitioner of his determination that, because she and her children had lived at the out-of-district residence for three years, such address had become their permanent home.  The superintendent, therefore, determined that the students were no longer homeless and would be excluded from respondent’s schools, effective June 22, 2018.[2]  This appeal ensued.

Petitioner contends that she and the students are homeless within the meaning of McKinney-Vento.  Petitioner asserts that she is sharing the housing of other persons due to the loss of housing, economic hardship or a similar reason.  Petitioner maintains that she is doubled-up at her aunt’s house but that she is “currently looking for [her] own place.”

Respondent asserts that petitioner and the students are not homeless within the meaning of McKinney-Vento.

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 ....[3]

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).

Here, petitioner has failed to establish that the students are homeless under State or federal law.  The record reflects that, at the time of this appeal, petitioner and the students were residing with her aunt and had been for the last three years.  Petitioner submits no evidence that this residence is not a fixed, regular and adequate nighttime residence.  Other than her conclusory statement to respondent that she is doubled-up, petitioner failed to explain why the fact that she shares a residence with her aunt renders the housing inadequate, despite being afforded with opportunities by respondent to do so.  Petitioner has failed to provide any evidence regarding the adequacy of the home, such as an affidavit from her aunt or information about the size and layout of the residence.  Thus, petitioner has failed to demonstrate that the students lack a fixed, regular and adequate nighttime residence (see Appeals of T.C., 53 Ed Dept Rep, Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Moreover, petitioner has not established that her residence is temporary or transitional.  The record indicates that, as of June 22, 2018, petitioner and the students had been residing with petitioner’s aunt outside the district for a period of almost three years.  There is no evidence that they need to vacate this residence or that there is a fixed time limit as to how long they can remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).  Moreover, although petitioner claims that she is actively trying to obtain permanent housing within the district, she provides no evidence of these alleged efforts (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404).

Based on the record before me, petitioner has failed to demonstrate that she and the students lack a fixed, regular and adequate nighttime residence or that their residence is temporary or transitional within the meaning of McKinney-Vento.  Accordingly, I cannot find that respondent’s determination that the students are not homeless and, thus, not entitled to attend district schools or receive transportation under McKinney-Vento, is arbitrary or capricious.

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

THE APPEAL IS DISMISSED.

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