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Decision No. 15,686

Appeal of C.S., on behalf of her daughter A.L.S., from action of the Board of Education of the Hadley-Luzerne Central School District regarding residency and transportation.

Decision No. 15,686

(November 13, 2007)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hadley-Luzerne Central School District (“respondent”) that her daughter, A.L.S., is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to continue to attend the district’s schools or to receive transportation.  The appeal must be dismissed.

In September 2006, petitioner and A.L.S. moved out of respondent’s district to live with her mother because of an alleged ongoing domestic violence situation.  On or about September 5, 2006, petitioner notified the district that she and A.L.S. were homeless and staying with her mother (A.L.S.’s grandmother) outside of the district.  A.L.S. continued to attend respondent’s schools based on petitioner’s assertion that she and her daughter were homeless.  Respondent provided transportation to A.L.S. to and from her grandmother’s residence for the entire 2006-2007 school year.

On or about August 29, 2007, petitioner requested that the district provide A.L.S. with transportation to and from her grandmother’s residence for the 2007-2008 school year.  By letter dated August 31, 2007, respondent’s school business manager advised petitioner that a determination had been made that A.L.S. was no longer homeless within the meaning of McKinney-Vento and that she would no longer be able to attend respondent’s schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on September 12, 2007.

Petitioner contends that A.L.S. is a homeless child within the meaning of McKinney-Vento and, therefore, entitled to attend respondent’s schools.  Respondent contends that neither petitioner nor her daughter reside within the district and that they are not homeless within the meaning of McKinney-Vento.

Education Law §3209(1)(a) defines a 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 night-time 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 accom-modation 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.

Petitioner’s daughter does not fit the definition of a homeless child under state or federal law.  The record shows that petitioner and A.L.S. have lived with A.L.S.’s grandmother outside respondent’s district for over one year.  They have a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate.  Additionally, other than her statement, petitioner has provided no evidence that she has made any effort to locate an apartment or house within respondent’s district.  In sum, petitioner has not established that her and her daughter’s living arrangement with the grandmother outside the district is temporary or transitional (Appeal of S.D., 47 Ed Dept Rep ____, Decision No. 15,620).  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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Accordingly, based on the record before me, I find respondent’s determination to be reasonable.

THE APPEAL IS DISMISSED.

END OF APPEAL