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Decision No. 16,138

Appeal of C.K., on behalf of her children C.B.K. and D.E.K., from action of the Board of Education of the Hoosic Valley Central School District regarding residency and transportation.

Decision No. 16,138

(August 20, 2010)

Girvin & Ferlazzo, PC, attorneys for respondent, Tara L. Moffett, Esq., of counsel

Petitioner appeals the decision of the Board of Education of the Hoosic Valley Central School District (“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.

The record indicates that until approximately January 2010 petitioner resided within respondent’s district, where her children attended school.  According to petitioner, in January 2010, she was “directed” by Child Protective Services to leave her in-district residence “for the safety of the children.”  Petitioner explains that, because she was unable to find adequate housing within respondent’s district, she rented an apartment outside the district.  The record indicates that respondent allowed petitioner’s children to attend school and receive transportation for the remainder of the 2009-2010 school year.

By letter dated June 8, 2010, respondent’s homeless liaison (“liaison”) informed petitioner that, because she had “established a fixed, regular, and adequate residence” outside respondent’s district, her children would no longer be eligible for McKinney-Vento services as of September 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 8, 2010.

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.

At all times relevant to this appeal, Education Law §3209(1)(a) defined a 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;
    4. awaiting foster care placement; or
    5. 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:
    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 ....

Section 100.2(x) of the Commissioner’s regulations also conforms 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 fit 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).  On the State Education Department’s form “Petition for an Appeal Involving a Homeless Child or Youth,” petitioner answered “No” to the question “Are the child’s/youth’s parent(s) or legal guardians homeless?”  Moreover, the petition contains only conclusory statements by petitioner that she “continues to experience economic hardship” and has been “unable to find adequate housing” within respondent’s district.  The fact that petitioner is renting a residence and wants to move back to the district does not make the residence temporary or transitional.  To the contrary, the record indicates that petitioner has been living in the apartment for more than six months and, according to an affidavit from the liaison, her current lease extends through December 2010.  

Although the record indicates that petitioner left her in-district residence due to “habitability concerns,” there is no evidence that her current residence is inadequate.  Indeed, the liaison states that petitioner described her residence as “a nice apartment,” and petitioner has submitted no evidence to the contrary.  Therefore, petitioner has not demonstrated that she is currently homeless under State or federal law.

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 the circumstances presented in this appeal, I do not find respondent’s determination to be arbitrary or capricious.