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Decision No. 16,852

Appeal of A.N., on behalf of her daughter P.H., from action of the Board of Education of the Greece Central School District regarding residency and transportation.

Decision No. 16,852

(November 23, 2015)

Harris Beach, PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel.

Elia, Commissioner.--Petitioner appeals the determination of the Board of Education of the Greece 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 or receive transportation.  The appeal must be dismissed.

Petitioner’s daughter enrolled in respondent’s schools on or about September 23, 2010.  At that time, petitioner was living at an address within the district.  According to the record, in early October 2012, petitioner was evicted from the in-district address and temporarily stayed at a hotel.  Subsequently, between November 2012 and October 2013, petitioner and her daughter moved to several different temporary locations; P.H. was considered homeless and continued to attend school in respondent’s district with transportation.

On or about October 31, 2013, petitioner informed respondent’s homeless liaison that she and her daughter were living at an address in the Rochester City School District (“Rochester address”), which according to public records, is a multi-family residence with six bedrooms and two bathrooms.  At that time, petitioner informed the homeless liaison that she hoped to remain at the Rochester address, but was not sure.  P.H. continued attendance in respondent’s district.

In February 2014, the homeless liaison contacted petitioner to request information on her housing status.  Petitioner indicated that she and her daughter remained at the Rochester address but her housing situation remained uncertain.  Given this, P.H. was allowed to complete the 2013-2014 school year in respondent’s district.

On or about August 19, 2014, the homeless liaison again questioned petitioner about her housing status and was told that petitioner was “looking for a new place to live.”

In October and November 2014, the homeless liaison advised petitioner that, because she had resided at the Rochester address for more than one year with no specific plans to move elsewhere, she may no longer be considered homeless pursuant to McKinney-Vento.  The homeless liaison indicated that she would review the situation at the end of the school year.

In or about May 2015, the homeless liaison again contacted petitioner and confirmed that petitioner and her daughter continued to reside at the Rochester address and did not have any plans to change residences.  The homeless liaison also discussed the adequacy of the home at the Rochester address with petitioner.  Petitioner confirmed that the home had running water and electricity, and there were no conditions, such as mold or rodents, that would make it uninhabitable.  The homeless liaison was also informed that petitioner’s daughter had her own bedroom at the Rochester address.

By letter dated May 26, 2015, the homeless liaison notified petitioner of her determination that P.H. was “permanently housed” and, therefore, not eligible to continue to attend district schools pursuant to McKinney-Vento.  On or about June 1, 2015, the homeless liaison provided petitioner with documents necessary to appeal that determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 9, 2015.

In her petition, petitioner states only that she and P.H. are sharing housing with two other people and provides no further information regarding her current housing situation.  Petitioner states that she is “[c]urrently behind in rent due to loss of job” and she feels that her “situation will resort back to homeless status.”

Respondent argues that petitioner has failed to demonstrate that her daughter is homeless with the meaning of McKinney-Vento.

Education Law §3209(1)(a) defines “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 nighttime 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 on the record before me, I find that petitioner’s daughter does not meet the definition of a homeless child under either State or federal law.  Petitioner states in conclusory fashion that she is homeless because she and her daughter share the housing of another person due to loss of housing, economic hardship or similar reason.  However, other than one statement in petitioner’s form petition that she “[c]urrently lost job in March due to attendance from surgery for [P.H.] and several of my doctors [a]ppointments.  Currently behind in rent due to loss of job; with those two things I feel my situation will resort back to homeless status,” petitioner has produced no evidence to support her claim of homelessness.  In fact, according to petitioner’s statements, she admits that she is paying rent at the Rochester address and that she is not currently homeless but fears she will become homeless again sometime in the future.  Petitioner also submits no evidence that the Rochester address is not a fixed, regular and adequate night-time residence.  Indeed, the record shows that petitioner and her daughter have been residing in a multi-family six bedroom, two bathroom home, in which petitioner’s daughter has her own room, since October 2013, and that this house has running water, electricity and no conditions that would make it uninhabitable.

To support its assertion that petitioner’s current living arrangement is adequate, respondent submits an affidavit from its homeless liaison, who explains her conversations with petitioner regarding the adequacy of the Rochester address.  Petitioner has submitted no reply or other evidence to refute respondent’s assertion.  Petitioner has the burden of establishing facts sufficient to warrant the relief sought.  On this record, petitioner has failed to carry her burden of demonstrating that she and her daughter lack a fixed, regular and adequate nighttime residence or that they are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a)(see Appeal of P.B., 55 Ed Dept Rep, Decision No. 16,804; Appeal of a Student with a Disability, 53 id., Decision No. 16,621).

Additionally, petitioner has not established that her living arrangement is temporary or transitional.  Petitioner states in her petition that she feels that her situation will resort “back to homeless status” thus indicating her belief that she is not currently homeless.  At the time of respondent’s May 26, 2015 determination, petitioner and her daughter had been residing at the Rochester address for 19 months.  Petitioner has not established that the loss of her current housing is imminent or that there is a limit as to how long she and her daughter can reside there (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608), nor is there any evidence that petitioner is making any effort to return to respondent’s district (see Appeal of Students with Disabilities, 55 Ed Dept Rep, Decision No. 16,826).

Accordingly, based on the record before me, I cannot conclude that respondent’s determination that petitioner’s daughter is not homeless is arbitrary, capricious or unreasonable.