Decision No. 17,336
Appeal of K.M., on behalf of her granddaughter L.G., from action of the Board of Education of the Greece Central School District regarding residency and transportation.
Decision No. 17,336
(February 28, 2018)
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 granddaughter (“the student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools tuition-free or receive transportation. The appeal must be dismissed.
The record indicates that, prior to the events described in this appeal, the student resided with her father within respondent’s district. In the fall of 2013, the student’s father relocated and moved outside the district. The student went to live with petitioner in an apartment outside the district (the “out-of-district address”). Respondent permitted the student to continue attending respondent’s schools as a homeless student pursuant to McKinney-Vento for the duration of the 2014-2015 school year.
In or about May 2015, respondent’s McKinney-Vento liaison (“liaison”) contacted petitioner to discuss the student’s McKinney-Vento eligibility. Petitioner informed the liaison that, if it was necessary for the student to continue to attend respondent’s schools, she would move into the district when her lease at the out-of-district address expired in August 2015.
During unspecified times, the record reflects that the liaison communicated with petitioner regarding the adequacy of the out-of-district address. Petitioner informed the liaison that the residence had running water, electricity and no conditions, such as mold or rodents, which would make it uninhabitable. Petitioner also informed the liaison that the residence had two bedrooms, one of which belonged to the student.
By letter dated May 20, 2015, the liaison informed petitioner of her determination that the out-of-district address was a permanent residence and that the student would be excluded from respondent’s schools effective June 30, 2015. This letter did not contain the form homeless petition as required by §100.2(7)(x)(iii)(c)(i) of the Commissioner’s regulations. Thereafter, the liaison sent a second exclusion letter to petitioner dated July 30, 2015. In this letter, the liaison again informed petitioner that the student would be excluded from respondent’s schools effective June 30, 2015. This letter included the required form petition. This appeal ensued. Petitioner’s request for interim relief was denied on September 2, 2015.
Although not entirely clear, petitioner appears to contend that the student is homeless within the meaning of McKinney-Vento because she shares petitioner’s housing due to her father’s economic hardship or similar reason. Petitioner states that the student is temporarily living with her because there is no room for her to live with her father. Petitioner asserts that the student’s father will soon relocate to respondent’s district.
Respondent contends that petitioner has not established that the student lacks a fixed, regular and adequate night-time residence or that her residence is temporary or transitional. Therefore, respondent argues that the student is not homeless under McKinney-Vento.
At all times relevant to this appeal, Education Law §3209(1)(a) defined “homeless child” as:
- a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
- sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
- living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
- abandoned in hospitals;
- awaiting foster care placement; or
- 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
- a child or youth who has a primary nighttime location that is:
- a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
- a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ...
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).
On this record, the student does not meet the definition of a homeless child under either State or federal law. Although the record contains statements that the student’s father “lost [his] housing” in 2013, there is no evidence in the record substantiating or explaining this claim. There is no evidence in the record before me that the student was forced to leave her father’s residence within respondent’s district due to lack of adequate housing or that she is sharing the housing of another due to loss of housing, economic hardship or similar reasons rather than her and/or petitioner’s preference that she reside with petitioner instead of with her father. While petitioner asserts that the student’s father’s current residence contains “no room” for the student, she has not submitted any proof to support this assertion, such as an affidavit from the father, or information about the size and layout of the residence. Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of district for homeless children are not applicable to the student’s circumstances (see Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,107; Appeal of D.R., 48 id. 60, Decision No. 15,793; Appeal of N.W., 47 id. 87, Decision No. 15,635, Appeal of G.D. and T.D., 45 id. 191, Decision No. 15,298).
Moreover, petitioner has not established that the student lacks a fixed, regular night-time residence, that the student’s current residence is inadequate, or that the student’s living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209 (see Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,107). The liaison avers that the out-of-district address has two bedrooms, one belonging to the student, running water, electricity and no conditions, such as mold or rodents, which would make it uninhabitable. Further, the petition indicates that only petitioner and the student reside in petitioner’s two-bedroom apartment. Thus, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night-time residence (see Appeal of T.C., 53 Ed Dept Rep, Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129; Appeal of L.P., 50 id., Decision No. 16,107).
Accordingly, based on the record before me, I find respondent’s determination to be reasonable.
Although the appeal must be dismissed for the reasons described above, I note that the student’s parent or legal guardian has the right to re-apply for admission on behalf of the student at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Effective October 1, 2016, §11432(g)(3)(i) of the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, now requires that if a dispute arises surrounding a child’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 U.S.C. §11432[g][E][i]). Because the dispute in this case arose prior to October 1, 2016, this statutory change is not applicable to this appeal.
 Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (42 U.S.C. §11434a). Effective April 20, 2017, children or youth awaiting foster care placement are no longer included in the definition of “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017. However, those changes are not relevant to a determination in this appeal.