Appeal of S.W., on behalf of her children T.T. and D.L., from action of the Board of Education of the City School District of the City of Rochester regarding residency and transportation.

Decision No. 16,011

(January 29, 2010)

Rochester City School District Department of Law, attorneys for respondent, Cara M. Briggs, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rochester (“respondent”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Although the timing of certain events at issue in this appeal is not clear, it appears that, due to domestic violence, petitioner and her family were forced to leave their home in Rochester and move to Connecticut.  When the perpetrator was incarcerated, petitioner and her family returned to Rochester and began living in a shelter.  However, petitioner’s family was forced to leave the shelter “as [their] time had run out” and petitioner could not find “safe suitable housing in Rochester.”  The record indicates that, on or about March 2009, petitioner and her family then moved to their current residence outside respondent’s district.

The record indicates that petitioner’s children attended respondent’s schools as homeless students during the 2008-2009 school year.  However, in a September 11, 2009 memorandum, respondent notified petitioner of its initial determination that petitioner had “secured permanent housing” prior to July 1, 2009 and that her children were “no longer eligible” for McKinney-Vento services.  By letter dated September 17, 2009, respondent informed petitioner of its final determination that she was not homeless and that her children would be excluded from its schools as of September 18, 2009.  In a September 30, 2009 memorandum, respondent informed petitioner that her children would be excluded from its schools as of October 12, 2009.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 5, 2009.

Petitioner contends that her children are homeless within the meaning of McKinney-Vento and, therefore, are entitled to attend respondent’s schools and to be transported thereto.  Respondent argues that petitioner’s children are not homeless within the meaning of McKinney-Vento.

Education Law §3209(1)(a) defines a homeless child as:

1.  a child or youth who lacks a fixed, regular, and adequate night-time 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 ....

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.

Based on the record before me, I find that petitioner’s children do not meet the definition of homeless children under either State or federal law.  Petitioner submits no evidence that she lacks a fixed, regular and adequate night-time residence or that she is living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).  The petition contains only conclusory statements by petitioner that her current living arrangement is temporary and that she intends to return to Rochester “ASAP when safety and money allo[w].”  However, the fact that petitioner is renting a residence and intends to move back to the district does not make the residence temporary or transitional.  Moreover, petitioner admits that she moved to her current residence, for which she signed a lease, in “08-09,” and now states that the perpetrator of the domestic violence has been “re-incarcerated” and is “no longer a threat” to her family.  While it is unfortunate that petitioner felt the need to leave her Rochester residence and that her family resided in a shelter during the 2008-2009 school year, she has not demonstrated that she remains homeless in the 2009-2010 school year under State or federal law.

Moreover, respondent has submitted an affidavit from a district principal who states that, in March 2009, petitioner informed her that she had moved to her current out-of-district residence and that she “needed” her children to continue attending respondent’s schools because “the time that they spent in transit between [respondent’s schools and their out-of-district residence] was time for which she had no daycare coverage.”  Petitioner provides no evidence to rebut respondent’s assertions.  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Under these circumstances, I find respondent’s determination – that petitioner is not homeless – to be reasonable.

Although this appeal is dismissed for the reasons described above, I must address a procedural matter.  The record contains an affidavit of acceptance of personal service, in which respondent’s homeless liaison (“liaison”) states that she accepted service of the petition on respondent’s behalf on October 9, 2009.  Section 100.2(x)(7)(iii)(c)(6) of the Commissioner’s regulations requires the liaison to transmit the petition to my Office of Counsel within five days after the petition is served.  In this case, the liaison’s affidavit was not notarized until October 20, 2009, more than 10 days after service was accepted, and my Office of Counsel did not receive the petition until on or about October 26, 2009.  I therefore remind respondent of its obligation to ensure that its liaison assist the families of homeless students in commencing appeals pursuant to the provisions of Education Law §3209 and Commissioner’s regulations §100.2(x).

THE APPEAL IS DISMISSED.

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