Decision No. 17,096
Appeal of A.B and J.M., on behalf of their son K.M., from action of the Board of Education of the Wheatland-Chili Central School District regarding residency and transportation.
Decision No. 17,096
(June 13, 2017)
Harris Beach, P.L.L.C., attorneys for respondent, Laura M. Purcell, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Wheatland-Chili Central School District (“respondent”) that their son is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or to receive transportation. The appeal must be dismissed.
The record indicates that, prior to the events discussed in this appeal, petitioners resided with their son at an address within the district (the “in-district address”) and their son attended respondent’s schools. On or about November 14, 2016, petitioners verbally notified the district’s registrar that they were moving to an address in Fairport, New York (the “Fairport address”), which is located outside of the district’s geographical boundaries. Petitioners did not provide a reason for the move. By letter dated November 15, 2016, respondent’s superintendent, who also serves as the district’s designated homeless liaison (“homeless liaison”), stated that “you have requested that your son, [K.M.], continue to attend the [d]istrict until you can find new residency within the [district]” and that “[b]ased on Board of Education policy, your son may remain in the [district] until January 27, 2017, at which time you must register your son in the [d]istrict you are residing in.” Petitioners were also advised in this letter that they would be responsible for their son’s transportation to and from school.
Respondent states that in early January 2017, the district’s registrar contacted petitioners to inquire as to whether they had found a residence in the district. Petitioners indicated that they had not and were continuing to live in Fairport.
By letter dated January 18, 2017, the homeless liaison wrote to petitioners and again informed them that their son must be registered in the district where they resided.
On January 26, 2017, the homeless liaison stated that she spoke with petitioner J.M. by phone, who advised her that “he believed the family may qualify for McKinney-Vento rights” and indicated that in early November 2016, the family had received an eviction notice for the in-district residence. Petitioner J.M. also stated that the family secured housing in the Fairport Central School District as of November 16, 2016, and that petitioners were paying rent for the Fairport address, which was a house owned by petitioners’ friend. Petitioner J.M. further represented that the house was currently unoccupied, as the owner was attending dental school in another state.
On February 1, 2017, petitioners met with the homeless liaison and requested that they be deemed homeless under McKinney-Vento. Petitioners advised the homeless liaison that they were “living in a two bedroom apartment and paying rent for that apartment” in which their son had his own bedroom. The homeless liaison also avers that, at the meeting, petitioners said they “believed that  they should be considered homeless as they did not have a lease,” and that the owner of the Fairport address “could return at any time and want to move back into the apartment.”
By letter dated February 2, 2017, the homeless liaison informed petitioners of her determination that petitioners’ son was neither homeless under McKinney-Vento nor a permanent resident of the district. This appeal ensued. Respondent states that “[a]s [p]etitioners have instituted an appeal, the transportation [provided as a result of petitioners’ claim that they were entitled to a homeless designation] will continue until at least the end of the 2016-2017 school year.”
Petitioners contend that their son is homeless within the meaning of McKinney-Vento and, therefore, entitled to attend respondent’s schools without payment of tuition and to receive transportation. Petitioners specifically argue that they are temporarily residing at the Fairport address and do not have a lease. Respondent maintains that neither petitioners nor the student reside within the district and that they are not homeless within the meaning of McKinny-Vento.
At all times relevant to this appeal, Education Law §3209(1)(a) defined “homeless child” as:
(1)a child or youth who lacks a fixed, regular, and adequate nighttime 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 ...
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, I find that petitioners have not established that their son meets the definition of a homeless child under either State or federal law. Petitioners contend that they and their son are homeless because they lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason. In their petition, petitioners describe the circumstances which caused them and their son to become homeless as “[e]viction w[ith] 3 day notice November 2, 2016” with “court [on] November 21, 2016”. Petitioners further state that they “left [the] apartment on November 15, 2016.” However, the record indicates that petitioners are currently “living in a two bedroom apartment” in which their son “has his own bedroom.” Petitioners do not assert, nor is there evidence in the record to indicate, that this residence is inadequate. While it is unfortunate that petitioners and their son were evicted from their district residence, there is no evidence in the record that their current living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209 (see Appeals of T.C., 53 Ed Dept Rep, Decision No. 16,502).
In addition, although the petition is not clear, to the extent that petitioners claim that they are sharing the housing of other persons due to loss of housing, economic hardship or similar reason - in particular, that they are sharing the apartment with their son’s uncle and grandmother - respondent contends that these individuals “previously lived with [p]etitioners in the [district] and moved with them to Fairport” and as such “they are not ‘sharing’ housing as contemplated by McKinney-Vento.” In addition, the record indicates that petitioners are paying rent to live at the Fairport address that exceeds the amount petitioners paid to rent the in-district address. In any event, proof of economic hardship, in and of itself, is not sufficient to establish homelessness (Appeal of J.A., 55 Ed Dept Rep, Decision No. 16,785). Petitioners submit no evidence with their petition, nor do they submit a reply, that would dispute or further explain respondent’s assertions.
Petitioners have also failed to establish that their current residence is temporary or transitional. Although petitioners argue that their family’s living arrangements are temporary or transitional in nature because they are “living at a friend’s house temporarily” with “no lease” and the homeowner “could return at any time and want to move back into the apartment,” petitioners provided no information to the homeless liaison, or in this appeal, to demonstrate that they were in imminent danger of losing their housing. The record also indicates that petitioners are living in the apartment and paying rent to their friend “under the presumption that he will continue to attend dental school for the remainder of this school year and likely through the future completion of his program.” Based on this record, I find that petitioners have not established that the loss of their current housing is imminent (see Appeal of A.N., 55 Ed Dept Rep, Decision No. 16,852; Appeal of S.D., 53 id., Decision No. 16,608), or that petitioners and their son will lose their housing at any particular time in the near future (see Appeal of R.D., 56 Ed Dept Rep, Decision No. 16,945; Appeals of M.S., 55 id., Decision No. 16,792; Appeal of A.W., 53 id., Decision No. 16,559). Nor is there any evidence that petitioners are making any effort to return to respondent’s district (see Appeal of Students with Disabilities, 55 Ed Dept Rep, Decision No. 16,826).
Accordingly, based on the record before me, I cannot conclude that respondent’s determination that petitioners’ son is not homeless is arbitrary, capricious or unreasonable.
In light of this disposition, I need not consider the parties’ remaining contentions.
Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission on their son’s behalf at any time and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 According to Board of Education Policy 7132, “[s]tudents of any grade level who move from the [district] during the school year may be given permission to finish the semester in which the move occurs..."
 In her affidavit, the homeless liaison states that she sought the advice of the New York State Technical and Education Assistance Center for Homeless Students regarding her dual role as final decision maker on residency decisions and as the district’s homeless liaison. As a result, the homeless liaison informed petitioners in her February 2, 2017 determination letter that she was “also designating” the school social worker at their son’s school “to assist [them] with [the appeal] process.”
 Effective October 1, 2016, §114329(g)(3)(E)(i) of the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, now requires that if a dispute arises surrounding a child’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 U.S.C. §11432[g][E][i]). Therefore, because this appeal was commenced on March 3, 2017, no application for a stay in this appeal was necessary.
 Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (42 U.S.C. §11434a). Effective April 20, 2017, children or youth awaiting foster care placement are no longer included in the definition of “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017. However, those changes are not relevant to a determination in this appeal.
 The record contains no evidence as to when the homeowner is expected to complete the dental program.