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Decision No. 16,559


 Appeal of A.W., on behalf of C.W., from action of the Board of Education of the Fairport Central School District regarding residency.

Decision No. 16,559

(October 4, 2013)

Wayne A. Vander Byl, Esq., attorney for respondent

KING, JR., Commissioner.--Petitioner appeals a determination of the Board of Education of the Fairport Central School District (“respondent”) that her daughter is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools. The appeal must be dismissed.

The record indicates that petitioner’s daughter has been residing in and attending school in respondent’s district since at least the 2009-2010 school year. In or around the spring of 2011, petitioner left her residence in respondent’s district and placed her daughter in temporary housing with friends outside respondent’s district, in the Webster Central School District. On her homeless designation application, petitioner contended that she was seeking medical treatment and was unable to care for her daughter. Petitioner was granted a homeless designation and petitioner’s daughter was permitted to continue her enrollment in respondent’s district until the end of the2010-2011 school year. On July 28, 2011, petitioner notified respondent that she had temporarily moved in with her mother in the Pittsford Central School District and requested that her daughter be permitted to remain in respondent’s district as a homeless child. Based on petitioner’s claim that her residence was temporary, her request was granted and petitioner’s daughter was allowed to remain in respondent’s district for the 2011-2012 and2012-2013 school years. By letter dated December 19, 2012,respondent notified petitioner that she was not considered homeless, that she was not a resident of respondent’s district and that her daughter was therefore required to attend Pittsford schools. This appeal ensued. Petitioner’s request for interim relief was denied on February 26, 2013.

Petitioner contends that her daughter is homeless within the meaning of McKinney-Vento and seeks continued

enrollment of her daughter in respondent’s district. Respondent argues that petitioner and her daughter are not homeless within the meaning of McKinney-Vento but, instead, reside outside the 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., 48 id. 348, Decision No. 15,882).

Based upon the record before me, I find that petitioner has not established that her daughter meets the definition of a homeless child under either State or federal law. Petitioner is currently living outside respondent’s district in a home owned by her mother and has been residing there for the past few years. Petitioner alleges that her mother is currently selling the house and on that basis alleges that her current residence there is temporary. Petitioner does not assert that the home in which she is presently living is inadequate nor does she provide any evidence about the adequacy or the temporary or transitional nature of the location to which she would be moving. In addition, petitioner has not established that her family needs to currently vacate their home or that there is a time limit as to how long her family can reside there. In that regard, petitioner’s claim is speculative and premature. Therefore, I find that petitioner has not carried her burden of proof with respect to her claim that her current living arrangement is temporary and petitioner has failed to demonstrate that her daughter lacks a fixed, regular and adequate night-time residence and is 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).

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