Decision No. 17,116
Appeal of T.C., on behalf of her children, from action of the Board of Education of the Depew Union Free School District regarding residency and transportation.
Decision No. 17,116
(June 30, 2017)
Harris Beach PLLC, attorneys for respondent, Marnie E. Smith, Esq., of counsel
Berlin, Acting Commissioner.--Petitioner challenges the determination of the Board of Education of the Depew Union Free School District (“respondent”) that her children (the “students”) are not eligible to attend the district’s schools tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”). The appeal must be dismissed.
Petitioner enrolled the students in respondent’s district in October 2014, indicating that the students resided at an address in Depew, New York (the “in-district address”).
On or about September 13, 2016, petitioner submitted a special busing request whereby she requested permission to drive the students to and from school. The district, suspecting petitioner may no longer reside within its geographical boundaries, conducted surveillance and determined that petitioner and the students did not reside at the in-district address.
On September 23, 2016, the district’s homeless liaison wrote to petitioner and informed her of his determination that the students did not reside within respondent’s district. The letter invited petitioner to present evidence of the students’ residency within the district and indicated that if petitioner did not respond by October 3, 2016, the district would render a final determination as to the students’ residency based on available information.
In October 2016, two letters unrelated to the instant appeal were sent to petitioner at the in-district address and returned marked, among other notations, “[r]eturn to sender” and “not deliverable as addressed.”
On October 14, 2016, the homeless liaison received two phone calls. The first was from petitioner, who told the liaison that she and the students were living with her mother for a week while work was being performed on the in-district address. The second was from an anonymous caller, who stated that petitioner lived at an address in Buffalo, New York (the “Buffalo address”), which was located outside of the geographical boundaries of respondent’s district.
On October 17, 2016, the homeless liaison sent a second letter to petitioner indicating that there were “serious concerns” about her residency. Attached to the letter were documents, including an affidavit to be completed by petitioner’s landlord, which petitioner was invited to complete to prove that the students resided within the district.
On October 18, 2016, a secretary at an elementary school within the Buffalo City School District called the homeless liaison and informed him that petitioner would be registering the students in the Buffalo City School District.
On October 20, 2016, the homeless liaison received a telephone message from the owner of the in-district address. He stated that petitioner, who he identified as his ex-girlfriend, recently asked him to sign a letter indicating that she resided at the in-district residence, but that he refused since petitioner no longer resided at the in-district address.
On October 21, 2016, petitioner contacted the homeless liaison and claimed, for the first time, that she was homeless. Petitioner indicated that she reached this conclusion after speaking by phone with a representative of the City School District of the City of the Buffalo. The homeless liaison subsequently contacted the director of the City School District of the City of the Buffalo’s central registration office and its homeless liaison. Neither individual had any record of speaking with petitioner.
The homeless liaison spoke with petitioner’s former landlord again on October 25, 2016. The landlord stated that petitioner voluntarily vacated the in-district address on or about August 2016 and had not returned since that time.
On October 26, 2016, the homeless liaison informed petitioner of the district’s determination that the students were not homeless. The homeless liaison recited much of the above events and explained why he did not find petitioner’s explanations of these events to be credible.
On November 18, 2016, petitioner left a voicemail message for the homeless liaison which stated that she and the students currently resided with her current boyfriend at an address in Cheektowaga, New York (the “Cheektowaga address”), outside of respondent’s district. This appeal ensued.
Petitioner alleges that she is currently homeless as defined by McKinney-Vento. Petitioner further asserts that she became homeless when the landlord at the in-district residence “wanted more to the relationship then [sic] friend[ship].” Petitioner requests a finding that the students are homeless and, thus, entitled to attend respondent’s schools tuition-free.
Respondent contends that petitioner has failed to demonstrate that she is homeless within the meaning of McKinney-Vento. Respondent asserts that petitioner did not become homeless when she voluntarily left the in-district address and that, in any event, petitioner’s current residence is adequate.
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).
Petitioner has failed to meet her burden of proving that the students are homeless under State or federal law. While petitioner now alleges on appeal that she left the in-district address when her former landlord “wanted more ... then [sic] friend[ship],” this conclusory allegation, without more, does not establish that there was a loss of housing, economic hardship or a similar reason which rendered the students homeless. Respondent asserts that petitioner voluntarily left the in-district residence, where she had lived with her previous boyfriend, and that the homeless liaison was told by the landlord, who was petitioner’s previous boyfriend, that petitioner was not told to leave and left voluntarily in or about August 2016. On this record, petitioner has not established that she is sharing the housing of other persons due to a loss of housing or similar reason, rather than a personal preference (Appeal of a Student with a Disability, 44 Ed Dept Rep 94, Decision No. 15,108).
Moreover, petitioner has not carried her burden of proving that she was or became homeless while residing at the Buffalo address. Although petitioner suggests in her petition that she and the students moved directly from the in-district address to the Cheektowaga address, the evidence in the record shows that petitioner and the students moved to the Buffalo address for approximately three months after leaving the in-district residence. There is no information whatsoever about the Buffalo address in the record and, thus, no proof relating to the adequacy of such residence. Therefore, petitioner has failed to meet her burden of proving that she lacked a fixed, regular and adequate nighttime residence while she and her children resided at the Buffalo address.
Based on the above determinations, respondent would not be responsible for enrolling the students even if they became homeless at the Cheektowaga address because respondent’s district could not constitute the students’ district of origin or location (see Education Law §3209[c], [d]). However, even assuming, arguendo, that petitioner and her children were homeless when they moved to the Cheektowaga address, petitioner has failed to meet her burden of proving that she and her children have lacked a fixed, regular and adequate nighttime residence since they have lived at the Cheektowaga address. Petitioner describes the Cheektowaga address as an “upper unit apartment” where the students “all have there [sic] own beds.” This evidence indicates that the Cheektowaga address is adequate, and petitioner has provided no evidence to the contrary. Moreover, there is no indication that petitioner’s current residence is temporary or transitional. The record contains no evidence that petitioner or the students need to vacate their 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 A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404).
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 children at any time should circumstances change and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The homeless liaison avers that, on unspecified dates, the district conducted surveillance and determined that petitioner resided at the Buffalo address.
 Effective October 1, 2016, McKinney-Vento 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 November 29, 2016, no application for a stay 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 McKinney-Vento, 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.