Decision No. 17,432
Appeal of N.H., on behalf of her daughter A.H., from action of the Board of Education of the Elwood Union Free School District regarding residency.
Decision No 17,432
(July 5, 2018)
Ingerman Smith L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Elwood Union Free School District (“respondent”) that her daughter (the “student”), 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 receive transportation. The appeal must be dismissed.
During the 2016-2017 school year, petitioner rented an apartment within the geographical confines of respondent’s district and enrolled the student in pre-kindergarten in the district using that address. According to “central registration documents” submitted to respondent on June 14, 2017, petitioner alleged that she and the student were homeless and in a “temporary living arrangement due to loss of housing or economic hardship” located outside of the district (“out-of-district address”) and designated the district as the school district of attendance for a homeless child. The State Education Department’s “STAC-202” form, Designation of School District of Attendance of a Homeless Child, submitted to respondent indicates that the student began living in temporary housing at the out-of-district address on February 8, 2017. The student remained enrolled in respondent’s district as a homeless pre-kindergarten student for the remainder of the 2016-2017 school year. At the outset of the 2017-2018 school year, the student started kindergarten as a homeless student residing at the out-of-district address.
On June 30, 2017, at the direction of the assistant superintendent for business (“assistant superintendent”), respondent’s homeless liaison attempted a home visit to the out-of-district address. A report of the visit indicates that the dwelling had a front and side entrance, that the homeless liaison knocked on both, and no one answered.
On November 9, 2017, at the direction of the assistant superintendent, the homeless liaison conducted a second home visit to the out-of-district address. The report of the home visit completed by the homeless liaison and submitted by respondent herein indicates that, as the homeless liaison approached the front door, petitioner directed her to the side entrance. It also indicates that, upon entering the dwelling, the homeless liaison was led down a flight of stairs by petitioner to an apartment where petitioner lives with the student and another child. The report indicates that the apartment contains “two bedrooms, a kitchen area, and a living room area” and that “[a]ll areas were furnished.” It further indicates that petitioner told the homeless liaison that each of her two children have their own bedroom and petitioner sleeps on a couch.
Thereafter, by letter dated November 13, 2017, the assistant superintendent notified petitioner that the student was not legally entitled to attend the public schools of the district because a home visit indicated that the student’s residence “appears to be a fixed, regular and adequate night-time residence” and therefore, the student was not homeless within the meaning of McKinney-Vento. The letter indicated that petitioner could “discuss the factual basis” for this conclusion and/or provide documentary evidence that she and the student lived within the geographical confines of the district. Finally, the letter advised that the student was permitted to attend school in respondent’s district through December 22, 2017.
On November 20, 2017, petitioner met with the assistant superintendent. According to an affidavit from the assistant superintendent, at the meeting, petitioner did not deny that the student’s housing was fixed, regular and adequate and asked how the student could complete the school year in respondent’s schools. By letter dated that same day, November 20, 2017, the assistant superintendent notified petitioner of the determination that petitioner and the student did not reside within the geographical confines of the district and did not meet the definition of homeless. The letter also notified petitioner that the student would be excluded from the schools of respondent’s district after December 22, 2017. This appeal ensued.
Petitioner contends that the student is homeless and, therefore, should be allowed to continue attending school in respondent’s district. Petitioner asserts that she and the student are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”
Respondent argues that the appeal should be dismissed for failure to state a claim for which relief can be granted and because petitioner has failed to meet her burden of proof.
Education Law §3209(1)(a) defines “homeless child” as:
- a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
- sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
- living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
- abandoned in hospitals; or
- a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
- an unaccompanied youth ...; or
- a child or youth who has a primary nighttime location that is:
- a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
- 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).
Based on the record before me, I find that petitioner has not established that the student meets the definition of a homeless child under either State or federal law.
In the petition, petitioner asserts that she and the student lack a fixed, regular, and adequate nighttime residence and are sharing the housing of other persons due to loss of housing, economic hardship or other similar reasons. The petition indicates that petitioner and the student are living in “a basement apartment in [her] moms [sic] house until [she] is able to find housing.” As stated above, the homeless liaison’s report of the home visit indicates that the apartment has two bedrooms, a living room and kitchen area, all of which are furnished. The report also indicates that petitioner told the homeless liaison that the student has her own bedroom. Petitioner has provided no description of the living arrangement and no information about its adequacy. Therefore, on this record, I find that petitioner has not met her burden of proving that her current residence is inadequate (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146; Appeal of D.W., 56 id., Decision No. 16,924).
Moreover, petitioner has not established that her current residence is temporary or transitional. Petitioner asserts that she is staying at the out-of-district address until she is “able to find housing.” However, there is no evidence in the record that petitioner and the children need to vacate their current residence or that there is a fixed time limit as to how long they may remain (see Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).
Accordingly, based on the record before me, I find that petitioner has not met her burden of proving that the student lacks a fixed, regular and adequate nighttime residence and therefore, respondent’s determination that the student is not homeless was not arbitrary or capricious.
Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s schools on the student’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Although it appears that petitioner has two children, only one is the subject of this appeal.
 Education Law §3209(1)(a-1)excludes from the definition of “homeless child” a child in a foster care placement or receiving educational services under certain provisions of Education Law §3202 or Articles 81, 85, 87 or 88 of the Education Law, circumstances not presented in this appeal.