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Decision No. 16,388

Appeal of G.S. and M.S. on behalf of their daughter G.S., from action of the Board of Education of the Fallsburg Central School District regarding residency and transportation.

Decision No. 16,388

July 27, 2012

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Christopher M. Militello, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Fallsburg Central School District (“respondent”) that their daughter is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431, etseq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record indicates that during the 2008-2009 school year, G.S. attended school in respondent’s district.  In June 2009, fire destroyed petitioners’ home.  In the immediate aftermath of the fire, petitioners’ family temporarily resided in a motel, and then, in August 2009, moved to a single-family dwelling on James Place in Kiamesha Lake, NY (“the James Place residence”).  The James Place residence is located within the Monticello Central School District (“Monticello”).  Based on petitioner M.S.’s representation to respondent that their move was temporary and transitional, G.S. was permitted to attend respondent’s schools as a homeless student during the 2009-2010 school year.

At the end of the 2009-2010 school year, petitioner M.S. advised the homeless liaison for the Sullivan County Board of Cooperative Educational Services (“BOCES”) that their residence at James Place was temporary and that they were seeking to return to a permanent residence within respondent’s district.  As such, G.S.’s enrollment as a homeless student in respondent’s schools was continued for the 2010-2011 school year.

In June 2011, respondent’s high school principal spoke with the homeless liaison about G.S.’s ongoing status as a homeless student.  The liaison advised that petitioners’ family continued to reside at the James Place residence and opined that G.S. may no longer qualify for homeless status.  By letter dated July 21, 2011, the principal notified petitioners that they were neither residents of respondent’s district nor homeless since they had resided in the same location for more than a year.  The principal further stated that G.S. should be enrolled in school in Monticello for the 2011-2012 school year.  In response to this letter, petitioner M.S. left a voicemail with the principal stating that she wished to continue sending G.S. to respondent’s schools because the Monticello school bus pickup was too far from her residence and because the Monticello schools were unsafe for her daughter to attend. 

By letter dated, July 27, 2011, the principal restated his determination that petitioners were not considered homeless, that they were not residents of respondent’s district and that their children were therefore required to attend Monticello schools.  Following receipt of this letter, petitioner M.S. advised school officials in August 2011 that the James Place residence had been sold and that the family faced potential eviction.  Based upon this information, the district reversed its determination and enrolled G.S. as a homeless student for the 2011-2012 school year.[1] 

The principal continued to investigate petitioners’ living circumstances and in October 2011, he obtained confirmation from G.S. that the family continued to reside at the James Place residence and was not in danger of being evicted.  Further inquiry into petitioners’ living arrangements revealed no verification of possible eviction.  Because the facts did not support a finding that G.S. was a homeless student, the superintendent issued a final determination dated January 30, 2012 that petitioners have a fixed, regular and adequate residence in Monticello and that G.S. was therefore not eligible to attend its schools or to receive transportation.  This appeal ensued.  Petitioners’ request for interim relief was granted on March 14, 2012.

Petitioners allege that G.S. is homeless within the meaning of McKinney-Vento.  They assert that their financial situation is unstable and that they have been unable to find adequate, affordable housing in respondent’s district.  Petitioners maintain that their landlord intends to sell the James Place residence, that they may be evicted therefrom and that it is therefore a temporary residence.

Respondent maintains that petitioners reside in Monticello and that G.S. is not a homeless student as defined by State and federal law.

Education Law §3209(1)(a) defines 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). 

Based on the record before me, I find that petitioners have not proven that their daughter fits the definition of a homeless child under State or federal law.  Initially, I note that on the State Education Department’s form “Petition for an Appeal Involving a Homeless Child or Youth,” petitioners answered the question “Are the child’s/youth’s parent(s) or legal guardians homeless” as follows:   “We are not today but will be if we cannot find a house.”  Petitioners submit no evidence that they currently lack a fixed, regular and adequate night time residence or that they are currently living in the kind of shelter or other accommodations described in Education Law §3209(1)(a).  Other than their conclusory assertions, petitioners submit no evidence that they need to immediately vacate their current residence.[2] The potential for petitioners to become homeless in the future does not constitute homelessness in the present.

Likewise, petitioners have not carried their burden with respect to their claim that their current living arrangement is temporary because their landlord intends to   sell the James Place residence and evict them therefrom.  In fact, petitioners submit nothing but unsubstantiated allegations that their eviction is pending.  Respondent’s principal and the student support specialist for Sullivan County BOCES, on the other hand, aver that school officials attempted to contact petitioners’ landlord to ascertain their housing status on a number of occasions and none of their calls were accepted or returned.  They also aver that petitioners submitted no evidence that they are in danger of losing their housing.

Additionally, petitioners have not carried their burden of proof with respect to their claim that their current living arrangement is temporary because their financial situation is unstable.  Petitioners submit a detailed budget itemizing their income and expenses and allege that several family members have health problems and/or disabilities and have received various forms of assistance.  However, the fact that petitioners are renting a residence and may be having difficulty paying their rent and other bills does not make the residence temporary or transitional (Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221).  To the contrary, the record indicates that petitioners continue to live at the James Place residence, where they have resided for approximately three years, and there is no evidence that they have been evicted or otherwise forced to relocate for financial reasons (Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221).  Nor does the record contain any evidence that the James Place residence is inadequate.

Moreover, while the record contains evidence that petitioners may be having financial problems and have sought various forms of assistance, such evidence by itself does not establish that they are homeless under State or federal law.  While it is unfortunate that petitioners’ financial situation is unstable and that may impact their ability to pay rent or locate housing within respondent’s district, this does not constitute homelessness.  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of school district for homeless children do not apply here (Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221; seeAppeal of E.B., 47 id. 94, Decision No. 15,638; Appeal of S.D., 46 id. 116, Decision No. 15,459).

Based upon the record before me, petitioners have failed to demonstrate that they lack a fixed, regular and adequate night time residence or that they are living in the kind of shelter or other accommodations set forth in Education Law §3209(1)(a).  Accordingly, I cannot find that respondent’s determination that petitioners are not homeless to be arbitrary or capricious.

In light of this disposition, I need not consider the parties’ remaining contentions.

Although the appeal must be dismissed for the reasons described above, I note that petitioners have the right to reapply for admission on their daughter’s behalf at any time should their circumstances change and to submit any documentary evidence for respondent’s consideration.



[1] I note that the July 2011 letters are not labeled “final determinations” and respondent ultimately continued G.S.’s enrollment as a homeless student for the 2011-2012 school year.  However, both July 2011 letters advised petitioners that G.S. was not entitled to continue attending its schools and directed petitioners to enroll her in school in Monticello.  Indeed, the July 21, 2011 letter specifically stated that respondent “no longer considers [petitioners] to be classified as ‘homeless’ under McKinney-Vento legislation.”  When a district determines that students are not homeless, it must provide the students or their parents written notice that the students are not entitled to attend its schools and the basis for its determination.  The notice must also state that the district’s determination may be appealed to the Commissioner of Education (8 NYCRR §100.2[x][7][ii][b]).  In addition, the notice must contain the name and contact information for the district’s homeless liaison, who is required to assist the students or their parents in filing such an appeal, along with the form petition (8 NYCRR §§100.2[x][7][ii][b] and 100.2[x][7][iii][c][1] and [2]).  In this case, the district failed to provide such information in the written notice sent to petitioners.  I remind respondent of the importance of ensuring that the educational needs of this vulnerable population are met and I urge respondent to ensure that all such students are properly served in accordance with the State and federal requirements designed to protect their educational welfare.

[2] Respondent’s homeless liaison avers that petitioners recently produced a letter purporting to place them on 90-day notice of eviction from the James Place residence but that she doubts the validity of this letter.  Neither party submitted a copy of this letter with the record.