Decision No. 16,992
Appeal of A.N., on behalf of her child I.N., from action of the Board of Education of the Gates-Chili Central School District regarding residency and transportation.
Decision No. 16,992
(November 4, 2016)
Harris Beach, PLLC, attorneys for respondent, Anne M. McGinnis, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Gates-Chili Central School District (“respondent”) that I.N. (“the student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools tuition-free or receive transportation. The appeal must be dismissed.
The record indicates that in September 2015, petitioner notified respondent that she had separated from her husband and that she and her three children moved to an apartment outside the boundaries of the district. Petitioner also asserted that the children’s father continued to reside within the district. Petitioner indicates that at the time of the separation she and her husband shared joint custody of the student, until the parties finalized a marital separation agreement. The record further indicates that on November 5, 2015, petitioner notified respondent that the student’s father no longer resided at the in-district address and that the student resided with her on a full-time basis at the out-of-district residence.
By letter dated December 9, 2015, respondent’s Director of Technology, Assessment, Data and Residency notified petitioner that the student was no longer entitled to attend the schools of the district because neither the student nor his parents resided within the district, and that the student would be excluded from attendance on December 23, 2015. Subsequently, petitioner asserted homeless status pursuant to McKinney-Vento and sought to continue the student’s enrollment in respondent’s schools. By letter dated December 23, 2015, respondent determined that the student did not meet the definition of a homeless child within the meaning of McKinney-Vento or Education Law §3209. Respondent permitted the student to continue attendance through the end of the semester on January 29, 2016, and provided transportation to and from the out-of-district residence. This appeal ensued. Petitioner’s request for interim relief was denied on February 1, 2016.
Petitioner claims that she and the student are homeless because they lack a fixed, regular, and adequate nighttime residence as a result of economic hardship and similar reasons stemming from the separation from her husband. Specifically, petitioner asserts that the current apartment is transitional and that the out-of-district residence, a one-bedroom apartment, is inadequate to meet the needs of four “adult-size” people.
Respondent maintains that the student is not homeless within the meaning of McKinney-Vento and Education Law §3209, and is therefore not entitled to attend the schools of the district. Respondent further contends that petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested.
Education Law §3209(1)(a) defines “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 nighttime 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 ....
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., 48 id. 348, Decision No. 15,882). On this record, the student does not meet the definition of a homeless child under either State or federal law because petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night-time residence and is homeless.
The record indicates that as a result of the separation, petitioner left the in-district residence and signed a lease for a one-bedroom apartment outside the district. Petitioner shares the apartment with the student and his two siblings. The petition indicates that the student and one of his siblings work for the purpose of assisting petitioner in paying the rent, and that petitioner is responsible for all utilities. Petitioner asserts that the student and one of his siblings share a room and have separate sleeping areas. Additionally, petitioner states that she and her other child each sleep in their own, separate beds. On this record, petitioner offers no evidence to support a claim that the residence is inadequate (see Appeal of D.W., 55 Ed Dept Rep, Decision No. 16,812; Appeal of S.T., 53 id., Decision No. 16,619; Appeal of T.B., 48 id. 4, Decision No. 15,774).
Moreover, petitioner has not established that her current residence is temporary or transitional. Petitioner makes a blanket assertion that the living situation is “transitional,” but provides no evidence to support such claim. The record indicates that petitioner has signed a lease on the one-bedroom apartment for which she pays rent, and there is no evidence that petitioner needs to vacate the residence or that there is a fixed time limit as to how long she may remain (see Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129).
Based on the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a) and §100.2(x) of the Commissioner’s regulations. Accordingly, I cannot find respondent’s determination that petitioner is not homeless to be arbitrary or capricious.
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 student at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Effective December 10, 2016, children or youth awaiting foster care placement will no longer be included in the definition of homeless under the McKinney-Vento Homeless Assistance Act as amended by the Every Student Succeeds Act (42 U.S.C. §11432[g][E][i]; 42 U.S.C. §11432[g][A]).
 Effective October 1, 2016, the McKinney-Vento Homeless Assistance Act was amended by the Every Student Succeeds Act, (42 U.S.C. §11432[g][E][i]; 42 U.S.C. §11432[g][A]). The circumstances which gave rise to this appeal occurred prior to October 1, 2016. As a result, the requirements of McKinney-Vento and the conforming provisions of Education Law §3209 and Commissioner’s regulation §100.2(x) in effect prior to October 1, 2016, are applicable to this appeal.