Appeal of A.L., on behalf of her daughter S.L., from action of the Board of Education of the Shenendehowa Central School District regarding residency and transportation.

Decision No. 17,442

(July 16, 2018)

Kathryn McCary, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Shenendehowa Central 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 tuition-free or receive transportation.  The appeal must be dismissed.

Prior to the events described in this appeal, the student resided in respondent’s district with petitioner and the student’s father and attended one of respondent’s elementary schools (“the school”).  The record indicates that during the 2016-2017 school year, the parents separated and on June 12, 2017, the Saratoga County Family Court awarded the parents joint physical and legal custody of the student.  On  August 25, 2017, petitioner and the student’s father submitted a Student Residency Questionnaire to respondent indicating that the student was homeless and that she was temporarily residing with petitioner (in Ballston Spa) and the student’s father (in Cropseyville); both such addresses are located outside the district.  Based upon the questionnaire, the student was provided with transportation to and from both addresses.  In November 2017, the student’s father notified the district that he had moved to Rotterdam and asked whether he could receive reimbursement for transporting the student between his home and the school in lieu of the transportation provided by the district.  The district has not transported the student between the school and the father’s address since November 20, 2017 and the father never submitted a request for reimbursement. 

By letter dated January 5, 2018, respondent’s superintendent informed petitioner and the student’s father that the student was not homeless within the meaning of McKinney-Vento and Education Law §3209.  Thereafter, petitioner informed the principal of the student’s school that, at a recent court appearance, the student’s custody had been changed and she would be living full-time with petitioner in Ballston Spa and requested daily transportation from the Ballston Spa address.  By email dated January 23, 2018 addressed to petitioner and the student’s father, the homeless liaison agreed to provide transportation to and from the Ballston Spa address five days per week, and extended the time through which transportation would be provided through February 2, 2018.  This appeal ensued.

Petitioner contends that she and the student are homeless within the meaning of McKinney-Vento because they are temporarily living with the student’s grandparents in Ballston Spa due to economic hardship or similar reason. Petitioner states that, on or about January 18, 2018, the student’s father terminated “all of his parental rights,” causing petitioner to become “the sole provider for [her] children.”  Specifically, petitioner asserts that they continue to reside with her parents outside respondent’s district because, as a result of “severe economic hardship” caused when the student’s father ceased financial support, “we were evicted from our permanent previous address, electricity terminated, and no food ....”  Petitioner states that she is “working hard on finding and paying for [their] own permanent residence while temporarily staying in Ballston Spa with [petitioner’s] parents, for only the time being.” 

Respondent asserts that petitioner fails to demonstrate that the student lacks a fixed, regular, and adequate nighttime residence and maintains that petitioner and her children are not homeless within the meaning of McKinney-Vento.

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Here, the sole relief sought by petitioner is that the student be allowed “to continue her school year at [the elementary school] with transportation provided.”  Petitioner states that she is “requesting transportation to continue only for this school year, so that she can continue to receive the excellent education and maintain the relationships she has made without disrupting any more of her mental well-being this school year.”  Since the dispute over the student’s homeless situation 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][3][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 2017-2018 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.  Education Law §3209(1)(a) defines “homeless child” as:

1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
3. abandoned in hospitals; or
4. 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;
5. an unaccompanied youth ...; or

2. a child or youth who has a primary nighttime location that is:

1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....[1]

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, petitioner has failed to meet her burden to show that the student is homeless under State or federal law. The record reflects that, at the time of this appeal, petitioner and the student were residing in the student’s grandparents’ single-family home in Ballston Spa.  Petitioner submits no evidence, and fails to even allege, that this residence is not a fixed, regular night time residence or is inadequate.  Thus, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night time residence (see Appeals of T.C., 53 Ed Dept Rep, Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Moreover, petitioner has not established that her residence is temporary or transitional under McKinney-Vento.  The record indicates that, as of the date of commencement of this appeal on January 25, 2018, petitioner and the student had been residing outside the district’s geographic boundaries in the student’s grandparents’ home at least since the student’s parents first separated during the 2016-2017 year (on a part-time basis), and full-time since January 18, 2018.  There is no evidence that they needed to vacate this 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 No. 16,404).

While I am sympathetic to petitioner’s situation, based on the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night time residence or that her residence is temporary or transitional within the meaning of McKinney-Vento.  Accordingly, I cannot find that respondent’s determination that the student is not homeless and, thus, not entitled to transportation under McKinney-Vento, is arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission 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