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Decision No. 16,604

Appeal of M.P. , on behalf of her children M.A.A., M.J.A., M.L.A. and H.M.A., from action of the Board of Education of the East Rochester Union Free School District regarding residency and transportation.

Decision No. 16,604

(April 11, 2014)

David R. Mor abito, Esq., attorney for respondent

KING, JR., Commissioner. -- Petitioner appeals the determination of the East Rochester Union Free School District (“respondent”) that her children are not homeless within the meaning of the McKinney - Vento Homeless Assist ance Improvements Act (42 USC §11431 et seq. , “McKinney - Vento”) and are therefore not entitled to attend the district’s schools or receive transportation . The appeal must be dismissed.

Petitioner claims that she and her children had resided in an apartmen t in respondent’s district , but that following the revocation of the apartment’s certificate of occupancy after an April 19, 2011 “police raid , ” her landlord would not allow her to remain in the apartment. Respondent asserts in its verified answer that , o n August 29, 2011, petitioner informed the district that she and the children moved to her mother’s out - of - district residence in April 2011 , but were forced to vacate that residence because they were not on the lease.

Petitioner claims that she and the children are homeless and that the children are temporarily staying with their father and paternal grandmother outside the district. According to p etitioner, she requested enrollment and transportation for the children on August 12, 2011 and such request was denied on September 22, 2011. This appeal ensued. Petitioner’s request for interim relief was denied on October 14, 2011.

Petitioner contends that her children are homeless within the meaning of McKinney - Vento and, therefore, are entitled to attend resp ondent’s schools and to be transported thereto. In support of her claim, petitioner submits an affidavit from the children’s paternal grandmother who states that he r son – the children’ s father - resides with her outside the district and has “legal joint custody” of the children . The paternal grandmother 2 also avers that petitioner has informed her that she is homeless and cannot care for the children, and that the “the children now permanently reside at my residence since April, 2010.”

Respondent contends , inter alia , that the children are not homeless within the meaning of McKinney - Vento because they permanently reside with their father outside the district.

I must first address a procedural issue. By letter dated January 5, 2012, respondent’s attorney a ttempted to submit additional materials for consideration in this appeal. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the s ubmission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided ( Appeals of Gonzalez , 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al. , 48 id . 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal ( Appeals of Gonzalez , 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al. , 48 id . 193, Decisi on No. 15,833). Respondent offers no explanation as to why the materials could not have been submitted with its answer and provides no affidavit or other evidence indicating that the materials were served on petitioner. Accordingly, I will not accept the se materials for consideration.

Turning to the merits, Education Law §3209(1)(a) defines a homeless child as:

(1) a child or youth who lacks a fixed, regular, and adequate nighttime residence, inc luding a child or youth who is:

(i) sharing the housing of other pe rsons 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 accommo dations;

(iii) abandoned in hospitals;

(iv) awaiting foster care placement; or

(v) a migra tory child ... who qualifies as homeless under any of 3 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 prim ary nighttime location that is:

(i) a supervised publicly or pr ivately operated shelter designed to provide temporar y 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 Com missioner’s regulations conform to the definition of “homeless children and youths” in McKinney - Vento.

Petitioner’s children do not fit the definition of homeless children under S tate or federal law. T he record indicates that the children reside outside t he district with their father , with whom petitioner shares joint legal custody. P etitioner alleges in the petition that such arrangement is temporary and that the father resides with his mother because he cannot afford his own residence . Petitioner conte nds that her children are, therefore, homeless within the meaning of McKinney - Vento because they are sharing the housing of other persons due to loss of housing, economic hardship or a similar reason. Petitioner submits no documentation to substantiate her claims. Indeed, in an affidavit submitted by petitioner in support of her appeal , the paternal grandmother avers that the children reside with her “permanently” and have done so since April 2010. Petitioner offers no explanation for this inconsistency. The children therefore have a fixed, regular nighttime residence and there is no evidence in the record that such residence is inadequate.

In this case, petitioner has not established that her children’s living arr a ng e ment with their father and paternal grandmother outside the district is temporary or transitional. 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. 4 15,882 ). Accordingly, based on the record before me, I find respondent’s determ ination to be reasonable.

Although petitioner does not raise this issue and it does not affect the outcome of this appeal, I note that, while petitioner contends that respondent denied her request for enrollment and transportation on September 22 , 2011, re spondent denies knowledge and information sufficient to answer this allegation and neither party has submitted a copy of a written determination by the district that the children are not homeless . When, as in the instant appeal, 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 appe aled to the Commissioner of Education. 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 record contains no indication that the required written notice was sent to petitioner . I remind respondent of the importance of ensuring that the educational needs of th is 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.

Finally, a lthough petitioner’s claim that her c hildren are homeless must be dismissed, I note that petitioner has the right to reapply for admission on their behalf at any time and to submit any documentary evidence for respondent’s consideration.

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