Appeal of T.B.-D., on behalf of her children J.D., J.D., and J.D., from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and transportation.

Decision No. 17,605

(March 20, 2019)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her children (the “students”) are not eligible to attend the district’s schools tuition-free pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

Petitioner registered the students for prekindergarten in respondent’s district in 2008, 2009, and 2010, respectively.  At that time, petitioner and the students lived at a residence within the district’s geographical boundaries (“the in-district residence”).  In November 2016, an anonymous individual wrote to the district and alleged that petitioner and the students had not lived at the district residence for over three years, and that instead they resided with the students’ grandmother at her residence in Wyandanch, New York (the “Wyandanch residence”), which is located outside of the district’s geographical boundaries.

By letter dated April 25, 2017, respondent advised petitioner that the students would be excluded from respondent’s district unless petitioner offered sufficient proof of the students’ residency within the district.  The letter indicated that petitioner could contact respondent’s assistant superintendent for finance and facilities (“assistant superintendent”) before May 3, 2017 to submit any documentation or information for respondent to consider prior to its determination.  The record indicates that petitioner did not respond to this letter.

According to respondent, sometime in “early May of 2017,” the students’ grandmother requested a meeting to discuss the residency of the students.  The district agreed to hold such a meeting on May 11, 2017.

On May 11, 2017, the students’ grandmother met with the assistant superintendent and the district’s residency officer and district registrar.  At the meeting, the students’ grandmother explained that the students had moved into the Wyandanch residence because petitioner was extremely ill, and that the in-district residence had been condemned and foreclosed.  According to respondent, the students’ grandmother also asserted that she was the “caretaker and custodian” of the students.  After the meeting, respondent confirmed that the in-district residence was boarded up and appeared uninhabitable.  Respondent verbally informed the students’ grandmother that the children would be permitted to attend respondent’s schools for the remainder of the 2017-2018 school year.

After the 2017-2018 school year ended, the assistant superintendent sent a letter to the students’ grandmother indicating that the children were no longer eligible to attend respondent’s schools as district residents or as homeless students pursuant to McKinney-Vento.  The letter explained that the students were not entitled to assistance under McKinney-Vento because the Wyandanch residence was a fixed, regular nighttime residence located outside of the district.  The letter also informed the students’ grandmother, among other things, that she could contact the assistant superintendent if she wished to submit any documentation or information concerning the students’ residency or homeless status.  The students’ grandmother thereafter contacted the assistant superintendent’s office to request an “eligibility” meeting, which was held on July 24, 2018.

At the meeting, the assistant superintendent explained that the district’s investigation revealed that the students’ grandmother, petitioner, and the students resided outside of the district at the Wyandanch residence.  According to respondent, the students’ grandmother stated at this meeting that the students had resided at the Wyandanch residence since January 7, 2014 and that petitioner, not the grandmother, had sole legal custody of the students.  The students’ grandmother further asserted that the students were homeless because the in-district residence had been foreclosed and sold.  The students’ grandmother further stated that petitioner suffered from health problems.

When asked to explain why she felt that the students should be permitted to continue attending school in respondent’s district, the students’ grandmother explained that, in September 2018, petitioner and the children were planning to move into another residence located within respondent’s district.  The grandmother also indicated that she was trying to sell the Wyandanch residence and move upstate or out of state, but was experiencing difficulties selling the Wyandanch residence because there had been a fire at the home in November 2017.

At the end of the eligibility meeting, the assistant superintendent advised the students’ grandmother of respondent’s final determination that the students were neither district residents nor eligible for assistance under McKinney-Vento.  Respondent memorialized this determination in a letter to the students’ grandmother dated July 25, 2018.[1]  This appeal ensued.

Petitioner argues that the students are homeless because they lack a fixed, regular, and adequate nighttime residence inasmuch as they are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.

Respondent contends that petitioner failed to meet her burden of proving that the students are homeless and argues that its determination was reasonable.

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).

Here, petitioner has failed to meet her burden of proving that the students lack a fixed, regular, and adequate nighttime residence.  The record shows that the students have resided at the Wyandanch residence since January 2014.  Petitioner offers no explanation of the nature or characteristics of the Wyandanch residence, which is described in the record as a home, and does not allege that the residence is inadequate.  Therefore, on this record, petitioner has not met her burden of proving that the Wyandanch residence is not fixed, regular, and adequate (see e.g. Appeal of J.B., 56 Ed Dept Rep, Decision No. 17,115).

Although petitioner alleges in the petition that she and the students “went back and forth” between the Wyandanch residence and another residence at unspecified times after she and the students left the in-district residence, she provides no evidence to support this allegation.  Similarly, although the students’ grandmother indicated to the district that there had been a fire at the Wyandanch residence sometime in 2017, there is no evidence in the record concerning this incident, such as evidence of damage to the house or an explanation of whether the fire rendered all or a portion of the house uninhabitable.  Therefore, petitioner has not proven on this record that the students lack a fixed, regular and adequate nighttime residence (Appeal of A.G., 55 Ed Dept Rep, Decision No. 16,818).

Additionally, the record does not support a finding that the students’ residence is temporary or transitional.  Although the students’ grandmother indicated that petitioner and the students were considering relocating to respondent’s district, there is no evidence that petitioner or the students need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeal of B.N. and J.N., 58 Ed Dept Rep, Decision No. 17,448; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).

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 the students at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.

In light of this determination, it is unnecessary to address respondent’s remaining contentions.

THE APPEAL IS DISMISSED.

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