Decision No. 16,502
Appeal of T.C., on behalf of her daughter B.C., from action of the Board of Education of the Lansingburgh Central School District regarding transportation.
Appeal of T.C., on behalf of her daughter N.G., from action of the Board of Education of the Lansingburgh Central School District regarding transportation.
Decision No. 16,502
(July 19, 2013)
Schiller & Knapp, LLP, attorneys for respondent, Jaime B. Thomas, Esq., of counsel
KING, JR. Commissioner.--In two separate appeals, petitioner challenges the refusal of the Board of Education of the Lansingburgh Central School District (“respondent”)to provide transportation for her children, B.C. and N.G., based on its determination that her children are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”). Because these appeals present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.
The record indicates that petitioner’s children attended school in respondent’s district as resident students at the beginning of the 2012-2013 school year. The petition indicates that in or about November 2012,petitioner and her children were evicted from their home in the district.
According to the record, on about December 10, 2012, petitioner and her children were admitted to a homeless shelter in Rensselaer, New York. On or about December 21,2012, petitioner and her children left the shelter and moved into an apartment in Albany, New York (“Albany residence”), outside the district.
The petition indicates that, on or about December 20,2012, petitioner requested that the district provide her children with transportation to and from the Albany residence and the district’s schools. By letter dated January 7, 2013, the district’s homeless liaison advised petitioner that a determination had been made that her children were no longer homeless within the meaning of
McKinney-Vento because they had become permanently housed in Albany as of December 21, 2012. The letter also informed petitioner that the district would permit her children to complete the 2012-2013 school year in its schools, but would not provide them with transportation. This appeal ensued. Petitioner’s request for interim relief was denied on February 27, 2013.
Petitioner contends that her children are homeless within the meaning of McKinney-Vento and, therefore, are entitled to receive transportation between the Albany residence and the district’s schools. Petitioner claims that she and her children lack a fixed, regular and adequate night-time residence and that they are only temporarily residing in Albany.
To substantiate her claims, petitioner submits, inter alia, documents regarding her November 2012 eviction from her in-district residence. She also submits a letter dated January 31, 2013 from Brenner Realty, stating that she is behind in paying her rent for the Albany residence and that it will commence an eviction action against her if she does not resolve this issue by February 6, 2013.
Respondent contends that petitioner’s children are not entitled to transportation to and from their Albany residence and the district’s schools because they are not homeless within the meaning of McKinney-Vento. In support of its contentions, respondent submits, inter alia, emails from petitioner stating that she and her family were temporarily homeless before moving into the Albany residence.
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 noted signed for, or ordinarily used as, a regular sleeping accommodation 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.
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., 48id. 348, Decision No. 15,882).
On the record before me, I find that petitioner’s children do not meet the definition of homeless children under either State or federal law. Petitioner submits no evidence that she lacks a fixed, regular and adequate night-time residence or that she is living in the kind of shelter or other accommodation described in Education Law §3209(1)(a). In fact, in both of her appeals, petitioner answered “No” to the question “Are the child’s/youth’s parent(s) or legal guardians homeless?” on the State Education Department’s form “Petition for an Appeal Involving a Homeless Child or Youth” (see Appeal of C.K.,50 Ed Dept Rep, Decision No. 16,138).
Additionally, petitioner does not assert and there is no evidence in the record indicating that the Albany residence is inadequate. While it is unfortunate that petitioner and her children were evicted from their district residence, there is no evidence in the record that their living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209. Thus, petitioner has failed to demonstrate that her children lack a fixed, regular and adequate night-time residence and are homeless (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129; Appeal of S.D., 47 id. 44, Decision No. 15,620).
Nor has petitioner established that her current residence is temporary or transitional. The petitions contain only conclusory statements by petitioner that her current residence is temporary. Although petitioner may be behind in paying her rent and has received a letter from her landlord indicating that it would commence eviction proceedings against her if she did not resolve this issue, the letter pre-dates the commencement of these appeals by approximately two weeks and petitioner has presented no evidence that eviction proceedings have in fact occurred or that she otherwise needs to vacate her current residence (Appeal of M.W., 46 Ed Dept Rep 151, Decision No. 15,471;Appeal of S.D., 46 id. 116, Decision No. 15,459). Thus, under these circumstances, I find respondent’s determinations reasonable.
Although petitioner does not raise this issue and it does not affect the outcome of these appeals, I am compelled to comment on respondent’s failure to comply with certain requirements of 8 NYCRR §100.2(x)(7). If, as in this case, a district disputes that a student is homeless, it must follow the dispute resolution procedures established in Commissioner’s regulations, including providing the student and/or the student’s parents an opportunity to submit information before making a final determination (8 NYCRR §100.2[x][ii][a]). At the conclusion of this dispute resolution process, if the district determines that a student is not homeless, it must provide written notice that the student is not entitled to attend its schools and the basis for the determination (8NYCRR §100.2[x][ii][b]). The notice must also state that the determination may be appealed to the Commissioner of Education and contain the name and contact information for the school district’s homeless liaison, who is required to assist in filing such an appeal, along with a form petition (8 NYCRR §§100.2[x][ii][b], [iii][c] and ).
In this case, while the January 7, 2013 letter to petitioner states that “information related to the appeals process” was enclosed, it does not indicate whether a copy of the form petition was included therewith. The letter also fails to advise petitioner that the district’s homeless liaison is required to assist her in filing an appeal or appeals. I remind respondent of the importance of providing families with such information and ensuring that the educational needs of this vulnerable population are met.
THE APPEALS ARE DISMISSED.
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