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Decision No. 16,487

Appeal of S.B., on behalf of her children, from action of the Board of Education of the Edwards-Knox Central School District regarding residency and transportation.

Decision No. 16,487

(June 24, 2013)

Silver & Collins, attorneys for respondent, Andrew W. Silver, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals a determination of the Board of Education of the Edwards-Knox 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 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation. The appeal must be dismissed.

In September 2012, petitioner and her children resided in the Governor Central School District. In October 2012, petitioner moved to her mother’s home in respondent’s district where she enrolled her children in school. At that time, petitioner completed a residency questionnaire, but did not indicate that her residency in the district was temporary or due to a loss of housing or economic hardship.

According to respondent, on November 16, 2012,petitioner requested that respondent’s transportation service drop her children off at an address located outside respondent’s district in the Hermon-Dekalb Central School District (“Hermon-Dekalb”). The record indicates that petitioner informed respondent’s staff that she had moved in with friends in the Hermon-Dekalb school district. After receiving a letter from respondent’s superintendent indicating that petitioner should enroll her children at Hermon-Dekalb, petitioner did so. According to respondent, staff at Hermon-Dekalb informed petitioner that, since she was “doubled-up” at the address in Hermon-Dekalb, petitioner was considered homeless under McKinney-Vento and that two of her children could attend school in Hermon-Dekalb, but that the child who requires a 12:1/1 program could continue to attend respondent’s district.

By letter dated November 28, 2012, respondent’s superintendent informed petitioner that her children were not entitled to enrollment or transportation to respondent’s schools because she no longer resides in the district. Respondent’s determination was based upon petitioner’s admission that she moved to her current location, outside of respondent’s district, because her mother’s house was “too small.” This appeal ensued.

Petitioner’s request for interim relief was rendered moot when respondent permitted petitioner’s children to continue attending its schools pending a decision in this matter.

Petitioner contends that she and her children are homeless within the meaning of McKinney-Vento because she is sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason. She seeks continued enrollment of her children in respondent’s district, with transportation. Respondent argues that petitioner and her children are not homeless within the meaning of McKinney-Vento but, instead, reside in the Hermon-Dekalb school district.

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 night-time 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.

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., 48id. 348, Decision No. 15,882).

Based upon the record before me, I find that petitioner has not established that her children meet the definition of homeless children under either State or federal law. Petitioner asserts that she is currently living outside respondent’s district in a home shared with friends. Petitioner does not assert that the home is inadequate. On the contrary, petitioner avers that the house was recently renovated, that the heat, water and electricity are adequate and that she shares rental costs with the other people living at that location. Thus, petitioner has failed to demonstrate that her children lack a fixed, regular and adequate night-time residence and are homeless (see Appeals of L.B., 50 Ed Dept Rep, Decision No.16,129; Appeals of P.R., 48 id. 24, Decision No. 15,781;Appeal of S.D., 47 id. 44, Decision No. 15,620).

Additionally, petitioner has not established that her current residence within the Hermon-Dekalb school district is of a temporary or transitional nature. Instead, petitioner asserts in this appeal that she moved into her mother’s residence within respondent’s district temporarily until she could find adequate permanent housing within the Hermon-Dekalb school district. Furthermore, there is no evidence that that petitioner needs to vacate her current residence in the Hermon-Dekalb school district or that there is a time limit as to how long her family can reside there (Appeals of L.B., 50 Ed Dept Rep, Decision No.16,129; Appeal of J.U., 50 id., Decision No. 16,095; Appeal of M.W., 46 id. 151, Decision No. 15,471). Accordingly, based on the record before me, I cannot find respondent’s respondent’s determination that petitioner’s children are not homeless is arbitrary, capricious or unreasonable.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her children’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.