Decision No. 17,134
Appeal of J.S., on behalf of her child K.G., from action of the Board of Education of the Pelham Union Free School District regarding residency and transportation.
Decision No. 17,134
(July 26, 2017)
Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel
ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Pelham Union Free School District (“respondent”) that her child (the “student”) is 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.
Prior to the events described in this appeal, the student attended the district’s schools. According to petitioner, on an undisclosed date she was “robbed of [her] income by a former business partner.” As a result, petitioner allegedly endured financial hardship, became ill and was temporarily unable to work.
On or about November 2016, petitioner and the student moved to an address in Mount Vernon, New York (the “Mount Vernon address”), which is located outside of the district’s geographical boundaries. Thereafter, the district deemed the student homeless and allowed her to continue to attend its schools pursuant to McKinney-Vento.
On January 29, 2017, respondent’s investigator visited the Mount Vernon address where he spoke with petitioner. The investigator observed that the house was a “three family residence” divided into three apartments, one of which was rented by petitioner. The investigator further observed that the apartment had two bedrooms and that the student had her own bedroom, furniture, clothing and personal items. Petitioner informed the investigator that she had been living at the apartment for ten months.
By letter dated March 8, 2017, the district’s assistant superintendent for curriculum and instruction informed petitioner of his determination that the student was not homeless. This appeal ensued.
Petitioner claims that she and the student are living in a one-bedroom apartment without a lease, and are therefore homeless within the meaning of McKinney-Vento. Petitioner requests a determination that the student is entitled to attend respondent’s schools tuition-free and receive transportation so that she may “complete the remainder of the school year.”
Respondent contends that petitioner and the student are not homeless pursuant to McKinney-Vento, and that petitioner has failed to meet her burden of proof. Specifically, respondent argues that the fact that petitioner does not have a written lease agreement for the Mount Vernon address does not demonstrate that the Mount Vernon address is not fixed, regular or adequate.
The appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).
Here, the sole relief sought by petitioner is that the student be allowed to attend respondent’s schools “for the remainder of the school year.” Since the dispute over the student’s homelessness arose after October 1, 2016, the student was entitled to immediate enrollment in respondent’s district and to remain enrolled pending final resolution of any appeals (42 USC §11432[g][E]). There is no evidence in the record that the student was improperly excluded from respondent’s schools during the pendency of this appeal, and since the 2016-2017 school year has ended, petitioner’s claim relating to such school year is moot.
Even if the appeal were not dismissed as moot, it would be dismissed on the merits. 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).
Here, petitioner has failed to meet her burden to show that the student is homeless under State or federal law. The record reflects that petitioner and the student are residing in an apartment where the student has her own bedroom with furniture, clothing and other personal items. The investigator who visited the residence on January 29, 2017 concluded that this bedroom was adequate and petitioner does not contend otherwise on appeal. Moreover, although petitioner now claims on appeal that her apartment has only one bedroom, the investigator observed that the residence had two bedrooms and petitioner has not submitted a reply or otherwise explained this discrepancy (Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,621).
Moreover, petitioner has not established that her current residence is temporary or transitional. The record indicates that petitioner and the student have been residing at the Mount Vernon address outside of the district’s geographic boundaries for approximately 10 months prior to January 29, 2017, and it contains no evidence that they 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). The mere fact that petitioner does not have a written lease for the Mount Vernon address, and therefore rents the property on a month-to-month basis, does not establish that it is temporary or transitional (see Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,621; Appeal of K.W., 48 id. 451, Decision No. 15,912).
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 she is living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a). Accordingly, I cannot find that respondent’s determination that the student was not homeless was 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)(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, no application for a stay in this appeal was necessary.
 Effective April 20, 2017, Education Law §3209(5)(c) was amended by Part C of Chapter 56 of the Laws of 2017 to conform to McKinney-Vento in this regard.
 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 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.