Decision No. 18,166
Appeal of J.S., on behalf of her grandchild, from action of the Board of Education of the Chautauqua Lake Central School District regarding residency and homelessness.
Decision No. 18,166
(August 1, 2022)
Harris Beach, PLLC, attorneys for respondent, Brendan P. Kelleher and Jessica R. Simonetti, Esqs., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Chautauqua Lake Central School District (“respondent”) that her grandchild (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, not entitled to attend the district’s schools or receive transportation. The appeal must be sustained to the extent indicated.
Although the record in this appeal is sparse, it appears that the student previously resided in respondent’s district with his mother. In February 2020, the student’s mother was admitted to an in-patient drug rehabilitation program. Thereafter, the student resided with petitioner, who resides outside of respondent’s district.
Throughout the remainder of the 2020-2021 school year and during fall 2021, petitioner communicated with district officials concerning the student and his residency status. In a letter dated December 13, 2021, respondent’s superintendent informed petitioner that the student would be excluded on January 1, 2022 because neither he nor petitioner resided within the district. Petitioner thereafter asserted that the student was homeless.
By letter to petitioner dated February 11, 2022, respondent determined that the student was not homeless because he had a fixed, regular, and adequate nighttime residence. This letter indicated that, on February 7, 2022, petitioner had reported that the student “ha[d] his own bedroom” at her home. This appeal ensued.
Petitioner asserts that the student is homeless because: (1) his parents’ residence was condemned; (2) the student’s mother’s prior drug use necessitated a “safety agreement” with Child Protective Services; and (3) the student’s mother is “receiving treatment.” For relief, she seeks a determination that the student is entitled to attend respondent’s schools as a homeless student.
Respondent asserts that the appeal must be dismissed as untimely and because petitioner has failed to prove that the student is homeless within the meaning of McKinney-Vento or the Education Law.
First, I must address two preliminary matters. Respondent’s timeliness argument is without merit. Respondent contends that the operative decision is the superintendent’s December 13, 2021 concerning residency. However, as indicated above, petitioner subsequently made a claim of homelessness, which resulted in respondent’s February 11, 2022 determination. Petitioner commenced the instant appeal less than 30 days thereafter. Thus, there is no basis in the record to dismiss the appeal as untimely.
Additionally, following service of the petition, petitioner submitted additional documentation. The record reflects that petitioner did not serve a copy of this exhibit on respondent. Therefore, I have not considered it in reaching my determination (Appeal of Koehler, 46 Ed Dept Rep 425, Decision No. 15,553).
Turning to the merits, pursuant to Education Law § 3209 (1) (a), a “homeless child” is: (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “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 section 100.2 (x) of the Commissioner's regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a ).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).
Petitioner has failed to meet her burden of proving that the students are homeless. On appeal, petitioner offers no evidence whatsoever concerning the adequacy of the out-of-district address. Absent such proof, I cannot find that the out-of-district residence is inadequate (Appeal of H.M., 60 Ed Dept Rep, Decision No. 17,903). I note that the evidence submitted by respondent—hearsay statements from petitioner that the student has his own bedroom and personal belongings—suggest that the residence is adequate.
Furthermore, there is no evidence that petitioner’s residence is temporary or transitional. The record reflects that petitioner has resided at the out-of-district residence since February 2020. Petitioner does not assert, and the record contains no evidence indicating, that she or the student need to vacate the 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).
However, the appeal must nevertheless be remanded as the record does not address who has custody of the student, an issue of fundamental importance in resolving this dispute. The superintendent indicates that, on February 7, 2022, petitioner reported that she was “seeking guardianship of the student.” Petitioner further indicated to the superintendent that she “desire[d] to have the [S]tudent’s mother removed from PowerSchool, the [D]istrict’s parent portal to access student information.” This suggests that legal custody of the student remains with one or both of his biological parents, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 ). This presumption can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).
Therefore, this matter must be remanded to respondent for a determination of the student’s residency, with specific attention to his legal custody. In light of this disposition, it is unnecessary to address the parties’ remaining contentions.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that, within 30 days of this decision and order, respondent evaluate the guardianship of the student and make a final written residency determination in accordance with 8 NYCRR 100.2 (y). Prior to making such determination, petitioner shall be afforded a full opportunity to submit any information concerning the student’s residency. The student shall remain enrolled in respondent’s district during this process.
END OF FILE
 Education Law § 3209 excludes from the definition of “homeless child” a child who is 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.
 A school social worker also indicates that she discussed “the custody of the [S]tudent and court proceedings” on January 21, 2022 but does not explain the substance of this conversation.