Decision No. 17,105
Appeal of K.R., on behalf of her child A.L., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.
Decision No. 17,105
(June 21, 2017)
Ingerman Smith, L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her child, A.L. (“the student”), is not homeless within the meaning of the McKinney–Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney–Vento”) and is, therefore, not entitled to attend the district’s schools or receive transportation. The appeal must be dismissed.
The record indicates that A.L. was enrolled in respondent’s district on or about December 1, 2010 based upon residence at an address within respondent’s district (the “in-district address”). On or about September 5, 2014, respondent received a records authorization form signed by petitioner, requesting the release of educational records to the Freeport Union Free School District on behalf of petitioner’s other child. On this form, petitioner identified her address as an address which is located outside the boundaries of respondent’s district (the “Freeport address”) in Freeport, New York. No such request was made on behalf of A.L.
By letter dated September 9, 2014, respondent’s director of pupil services acknowledged receipt of the September 5, 2014 records authorization and questioned petitioner’s residence within the district. On or about September 15, 2014, respondent held a residency meeting at which petitioner stated that her family no longer resided at the in-district address and had moved into temporary housing with petitioner’s foster parent at the Freeport address. Petitioner provided documentary evidence of her eviction from the in-district address in June 2014. At this meeting, petitioner acknowledged that she enrolled her other child in the Freeport Union Free School District but indicated that she wanted A.L. to continue to attend respondent’s schools. Based upon petitioner’s eviction from the in-district address and her assertion that she was temporarily residing with her foster parent outside of the district, respondent designated the student as homeless. The student continued to be enrolled in respondent’s schools pursuant to McKinney-Vento during the 2014-2015 and 2015-2016 school years.
The record indicates that on or about November 2, 2016 respondent’s homeless liaison conducted a home visit to the out-of-district address. Respondent’s homeless liaison observed that the student shared an appropriately-sized bedroom with petitioner’s other child, and that both the homeowner and petitioner had their own bedrooms. During the home visit, petitioner reported that she was actively looking for housing within respondent’s district. Based upon this home visit, respondent determined that the student’s living arrangement was fixed, regular and adequate.
By letter dated November 9, 2016, respondent determined that the student was no longer homeless under McKinney-Vento and invited petitioner to present any documents relating to her housing situation at a meeting to be held on November 14, 2016. The record indicates that at this meeting, petitioner again asserted that her living situation was temporary. As evidence, petitioner provided a letter from her foster parent, the homeowner, indicating that following petitioner’s eviction from her in-district residence, the homeowner temporarily offered her home to petitioner and her children because she did not want them to be homeless. The homeowner further asserted that petitioner’s living situation was not permanent. However, neither petitioner nor the homeowner identified a date by which petitioner and her children would be required to vacate the home.
By letter dated December 12, 2016, respondent informed petitioner that the student no longer qualified as temporarily housed within the definition of McKinney-Vento. This appeal ensued.
Petitioner asserts that she and the student are homeless because they lack a fixed, regular and adequate nighttime residence and are sharing the housing of other persons due to loss of housing, economic hardship or a similar reason. Specifically, petitioner asserts that she lost her housing within the district, and that she and her children are temporarily residing with her foster parent outside of the district.
Respondent asserts that petitioner has failed to state a claim upon which relief can be granted, and that petitioner and her child do not meet the definition of homeless under McKinney-Vento or State law. Specifically, respondent contends that the student no longer meets the definition of a homeless child because the student is not temporarily housed as defined by McKinney-Vento. Respondent further contends that petitioner has not provided any evidence that the residence is inadequate, temporary or transitional.
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 petitioner has failed to meet her burden to show that the student is homeless under State or federal law. The record indicates that petitioner was evicted from her in-district residence in June 2014. The record further indicates that, subsequent to her eviction, petitioner and her two children moved into the home of petitioner’s foster parent outside of respondent’s district. As noted above, the liaison avers that during the home visit in November 2016, he observed that the student shared an appropriately-sized bedroom with her sibling, and that both petitioner and the homeowner each had their own bedrooms. Petitioner does not contest these assertions and does not allege that, nor is there any evidence in the record that, the residence is inadequate. (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of D.W., 55 id., Decision No. 16,812; Appeal of S.T., 53 id., Decision No. 16,619).
Moreover, petitioner has not established that her current residence is temporary or transitional. The record indicates that petitioner and her children have been residing at the Freeport address since June 2014. Although petitioner stated to respondent’s homeless liaison that she was looking for housing within the district, petitioner offers no evidence to support this claim (see Appeal of D.W., 56 Ed Dept Rep, Decision No. 16,924). Further, while the homeowner states that petitioner and the student’s living situation is not permanent, there is no evidence that petitioner or the student need to vacate the current residence or that there is a fixed time limit as to how long they may remain (see Appeals of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of P.B., 55 id., Decision No. 16,804; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404). Indeed, the record shows that petitioner and the student had resided at the Freeport address for over two years at the time petitioner commended this appeal.
Based upon the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night-time residence or that the student is living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a). Accordingly, respondent’s determination that the student was not homeless was not 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 her child at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Effective October 1, 2016, §11432(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 student’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 USC §11432[g][E][i]). Therefore, because this appeal was commenced on January 10, 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 USC §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.