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Decision No. 16,139

Appeal of H.V., on behalf of her children, from action of the Board of Education of the Hoosic Valley Central School District regarding residency and transportation.

Decision No. 16,139

(August 26, 2010)

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

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hoosic Valley Central School District (“respondent”) that her daughter and son, a student with a disability, are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act of 2001 (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.

Petitioner owns a home in respondent’s district and, at the start of the 2008-2009 school year, her two children attended school as district residents.  In the fall of 2008, petitioner informed respondent’s homeless liaison (“liaison”) that she was experiencing “septic issues” at her home that she could not afford to fix.  According to the liaison, petitioner stated that she and her children were staying “with friends while exploring other options.”  The liaison agreed that the children were homeless at that time and allowed them to continue to attend school and receive transportation for the 2008-2009 school year.

At the start of the 2009-2010 school year, petitioner again requested that her children be allowed to continue to attend respondent’s schools as homeless students, explaining that they were staying with a friend in Cohoes, outside respondent’s district.  Respondent again allowed petitioner’s children to attend school and receive transportation for the 2009-2010 school year.

By letter dated October 29, 2009, respondent notified petitioner that, effective November 5, 2009, her 17-year-old daughter, who had been admitted to the district’s schools for the 2009-2010 school year, would be dropped from enrollment, pursuant to Education Law §3202(1-a), because she had been absent for more than 20 consecutive school days.  According to respondent, petitioner’s daughter has not attended its schools since that time.

By letter dated June 8, 2010, the 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 to attend the district’s schools under McKinney-Vento as of September 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 28, 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.

With respect to petitioner’s daughter, the appeal is 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  As noted above, on November 5, 2009, petitioner’s daughter was dropped from enrollment and has not attended respondent’s schools since that time.  Petitioner submits no evidence to the contrary.  As a result, the appeal is dismissed as moot with respect to petitioner’s daughter.

Petitioner’s claim is also without merit with respect to both of her children.  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.

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).  Based on the record before me, I find that petitioner has failed to establish that her children are homeless under either State or federal law.

Petitioner and her children have been residing in a friend’s four-bedroom home in Cohoes, for which petitioner pays rent, since at least the fall of 2009.  The record contains no evidence that this living arrangement is temporary or transitional or that such residence is inadequate.  Indeed, the only documentation submitted by petitioner is a copy of the liaison’s June 8, 2010 determination letter.  Moreover, according to an affidavit from respondent’s elementary school principal, in November 2009, petitioner provided respondent with the Cohoes address as her current mailing address and residence and respondent “has issued report cards and [other] documents to this mailing address for the majority of the 2009-2010 school year.”

Although petitioner alleges that she left her Hoosic Valley residence because she could not afford to fix a septic problem, she has submitted no evidence to substantiate this claim.  I also note that, according to the liaison’s affidavit, petitioner stated on “numerous occasions” that she wants her son to “stay in [respondent’s] schools” because “she does not believe that [Cohoes’ schools] are good enough.”  Petitioner has submitted no reply or other evidence to refute the liaison’s assertion.

Based on the record before me, petitioner has failed to demonstrate that she and her children lack a fixed, regular and adequate night-time residence or that they are living in the kind of shelter or other accommodation set forth in Education Law §3209(1)(a).  Accordingly, I cannot find respondent’s determination that petitioner is not homeless to be arbitrary or capricious.