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Decision No. 16,521


 Appeal of T.B., on behalf of his daughter I.B. and his granddaughter H.B., from action of the Board of Education of the Waterford-Halfmoon Union Free School District regarding residency and transportation.

Decision No. 16,521

(August 26, 2013)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine

A. Lanchantin, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Waterford-Halfmoon Union Free School District (“respondent”) that his daughter and granddaughter are not homeless within the meaning of the McKinney-Vento Homeless Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”).The appeal must be dismissed.

The record indicates that, in August 2011, Hurricane Irene rendered petitioner’s in-district home uninhabitable, and petitioner began living with his father outside the district. Both I.B. and H.B. were permitted to attend district schools for the 2011-2012 school year pursuant to McKinney-Vento.

By letter dated August 7, 2012, respondent’s superintendent informed petitioner that since he had resided with his father outside the district for almost one year, his residence was considered fixed and adequate and I.B. and H.B. were no longer considered homeless. Petitioner was also informed that I.B. and H.B. would be excluded from district schools effective September 5, 2012.This appeal ensued. Petitioner’s request for interim relief was denied on September 14, 2012.

Petitioner contends that I.B. and H.B. are homeless within the meaning of McKinney-Vento and, therefore, are entitled to attend respondent’s schools. Petitioner provides a list of “family and friends” with whom he alleges he is residing and maintains that he is working with two real estate agents to locate a home within the district.

Respondent argues that petitioner has failed to state a claim upon which relief may be granted or to provide any evidence that he, I.B. and H.B. are homeless within the meaning of McKinney-Vento.

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


(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 groundsdue 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 anyof 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 ....

Section 100.2(x) of the Commissioner’s regulations also conforms to the definition of “homeless children and youths” in McKinney-Vento.

On this record, petitioner has not established that and H.B. fit the definition of homeless children under state or federal law. The record shows that petitioner, and H.B. have lived with petitioner’s father outside respondent’s district since August 2011. They have a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate. Although petitioner now alleges that he has been staying with numerous family and friends since August 2011,respondent’s homeless liaison avers that petitioner never informed him that he may have ceased living with his father and that petitioner also stated that he stayed with family and friends for short periods during the summer of 2012 to “give his parents a break.” Petitioner has submitted no reply or other evidence to the contrary or offered any explanation for this inconsistency. While it is unfortunate that petitioner’s home was flooded during Hurricane Irene, he has not established that his family’s living arrangement with his father outside the district is temporary or transitional (Appeals of P.R., 48Ed Dept Rep 24, Decision No. 15,781; Appeal of C.S., 47 id. 254, Decision No. 15,686). Other than his own statements, petitioner has provided no evidence that he has made any effort to locate an apartment or house within respondent’s district.

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 on the record before me, I find that petitioner has failed to meet his burden. Accordingly, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the children’s behalf at any time and to submit any documentary evidence for respondent’s consideration.