A Suffolk County student who has a volatile and limited relationship with her parents meets the definition of “homeless” under the McKinney-Vento Homeless Assistance Act, the state’s education commissioner has decided in an opinion that some claim broadens the act’s reach significantly.
The decision by education Commissioner MaryEllen Elia means the student, referred to only as S.S. in the opinion, can attend her high school in the Rocky Point Union Free School District without paying tuition. She can also receive district transportation to the school.
“I find that petitioner has established that the student meets the definition of a homeless unaccompanied youth under either state or federal law,” Elia wrote. “The record indicates that the student is not in the physical custody of a parent or legal guardian … The petition describes the student’s living situation as ‘a temporary bed in the home of [a] friend.’”
Elia’s decision came after the student’s mother, referred to only as D.S., appealed the school district’s ruling that said her daughter could not attend the school because she was neither “homeless” under the act nor a district resident.
“The commissioner appears for the first time to say that where a child is having an intransigent relationship with her parent, that that child can be considered homeless, because she can’t live at peace with her mother,” said John Ray, of Ray, Mitev & Associates in Miller Place, who represented D.S. “The case significantly broadens a child’s ability to say they are a homeless child and receive services and attend a school of their choice.”
But Kevin Seaman, a Stony Brook-based lawyer who represented the Rocky Point school district, said, “I don’t know if I agree that that’s true, because each case is so factually specific that I think it is difficult to say this decision has broken new ground.”
In Appeal of D.S., on behalf of her daughter S.S., No. 17161, the issue revolved around whether S.S.’s situation meant she was an “unaccompanied youth,” meaning she had to be both homeless and not in the custody of a parent or guardian.
D.S. relocated in August 2016 from an address in the school district’s area to her boyfriend’s home outside of the district, Elia wrote. The boyfriend, also unnamed, has said that he would “not allow” S.S. to live in his home because violence would ensue imminently between the student and her mother. D.S. has stated she and her daughter have a “long-standing exceedingly volatile … dangerous relationship” and they are unable to live together or “be in close proximity” to one another, Elia wrote.
Meanwhile, S.S.’s father, also unnamed, has said he is estranged from his daughter and that the Suffolk County Family Court has issued an order of protection, based on neglect, disallowing him from living with his daughter. S.S. noted the same, in an affidavit, and said the father receives only five hours of visitation with her per week.
In the meantime, S.S. has found a place to stay, at least on some nights, at the house of friend, although she has maintained that she doesn’t stay there every night. Seaman and the district have argued it is “fixed,” and therefore more than a temporary residence, while also contending that “the ‘personal difficulties’ described by petitioner do not constitute a basis for homelessness.”
But Elia disagreed with the district in an Aug. 23 decision. “An affidavit from the student indicates that she was ‘abandoned’ by her parents and ‘found a temporary bed in the home of [her] friend …’” she wrote, adding, “She cannot be said to have a fixed, regular and adequate nighttime residence.”
Seaman said he and the district have not yet decided whether they’ll pursue the matter further, either by seeking an appeal in state court in Albany or by reopening the matter before Elia.
“It has not been temporary, she has clearly had a sufficient nighttime residence” over the last year, he said of the friend’s home, adding, “It’s a sympathetic case, the commissioner was sympathetic to her [S.S.].”