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Decision No. 16,395

Appeal of A.F. from action of the Board of Education of the Alden Central School District regarding transportation.

Decision No. 16,395

(August 21, 2012)

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

GREY, Acting Commissioner.--Petitioner appeals the refusal of the Board of Education of the Alden Central School District (“respondent”) to provide transportation to her based on its determination that she is not homeless within the meaning of the McKinney-Vento Homeless Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”).  The appeal must be dismissed.

At the beginning of the 2011-2012 school year, petitioner resided with her parents within the district and attended respondent’s high school.  In December 2011, petitioner moved out of her parents’ home.  She immediately began living with C.D., a resident of the Cleveland-Hill Union Free School District (“Cleveland-Hill”).  Thereafter, petitioner requested transportation from C.D.’s home to school in respondent’s district.  In her request for transportation, petitioner alleged that she was homeless.  Based upon petitioner’s claim that she was homeless, the district initially provided the transportation.

By letter dated January 30, 2012, the high school principal asked C.D. to provide proof that A.F. was homeless.  In response, petitioner submitted a letter from C.D., dated February 18, 2012, stating that petitioner was forced to leave her parents’ home due to a domestic violence situation.  Subsequently, the district gave petitioner another opportunity to submit evidence proving that she was homeless, but petitioner failed to submit any information. 

The district then conducted home visits to petitioner’s parents’ home and to C.D.’s home.  By letter dated April 16, 2012, the principal notified petitioner that, based upon the evidence submitted and the information gathered during the home visits, he had determined that she was not homeless.  The letter further indicated that, effective April 27, 2012, transportation to and from school from C.D.’s out-of-district residence would be discontinued, because petitioner was not homeless.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 8, 2012.

Petitioner alleges that she is a homeless student entitled to transportation between school and C.D.’s residence.  Respondent alleges that petitioner is not a homeless student and, therefore, is not entitled to transportation.

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 accommodation for human beings

          ....

Section 100.2(x) of the Commissioner’s regulations also conforms to the definition of “homeless children and youths” in McKinney-Vento.

The record reflects that petitioner actually has two fixed, regular and adequate nighttime residences available to her.  The first is her parents’ home.  The district’s investigation confirmed that the home was an adequate nighttime residence for a child.  Petitioner’s three siblings live in the home with her parents and petitioner has her own bedroom in the house.  The investigation also did not reveal any circumstances that forced petitioner to move out of the home.[1] Indeed, according to her petition, A.F. left her parents’ residence because she “did not feel welcome there,” and she “did not like the way [she] was getting treated there [sic] also me and my father did not get along.  Their [sic] was to [sic] many people liven [sic] in the house and I didn’t feel like it was good for me to stay there.”  The district’s guidance counselor and attorney both submitted affidavits averring that petitioner’s stepmother stated that petitioner left because she did not want to follow the house rules.  The district’s attorney averred that petitioner’s stepmother stated that she can return to her home at any time.

In addition, the record indicates that petitioner also has an adequate home with C.D., that C.D. plans to seek custody of petitioner, and that petitioner will continue living with C.D. until she graduates from high school.[2]

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Based on the record before me, petitioner has failed to demonstrate that she lacks a fixed, regular and adequate

nighttime residence or that she is living in the kind of shelter or other accommodation set forth in Education Law §3209(1)(a).  Accordingly, I cannot conclude that respondent’s determination that petitioner is not homeless and, therefore, not entitled to transportation was arbitrary, capricious or unreasonable.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Petitioner submitted an order of protection issued against her father.  However, petitioner’s stepmother indicated that the order had been withdrawn.  Moreover, the order expired on June 30, 2012 and petitioner presents no evidence that the order was extended.

[2] In her February 18, 2012 letter, C.D. states that she intends to “have [A.F.] transfer to Cleveland-Hill this coming fall.”