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Decision No. 17,461

Appeal of M.W. from action of the Board of Education of the Sweet Home Central School District regarding residency and transportation.

Decision No. 17,461

(July 25, 2018)

Greenberg Traurig, LLP, attorneys for petitioner, Tricia A. Asaro, Esq., of counsel

Harris Beach, PLLC, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner, M.W. (“the student”), appeals the determination of the Board of Education of the Sweet Home Central School District (“respondent”) that she is not entitled to attend the schools of the district tuition-free or receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The record indicates that in or around June 2017, petitioner, who is fifteen years old, left her mother’s residence after an alleged physical altercation.  Petitioner’s mother’s residence is located within the geographical boundaries of the City School District of the City of Buffalo.  Following the alleged altercation, petitioner moved in with her great-aunt[1] at her residence, which is located within respondent’s district. 

At the beginning of the 2017-2018 school year, petitioner attended a charter school and took public transportation between her great-aunt’s residence and the charter school.  On October 13, 2017, petitioner and her great-aunt met with respondent’s Family Support Center Coordinator and Homeless Liaison (“liaison”) and requested that petitioner be enrolled in respondent’s schools.  During this discussion, the great-aunt told the liaison that Child Protective Services (“CPS”) had not been notified of the alleged incident between petitioner and her mother, and that petitioner’s younger siblings continued to reside with petitioner’s mother.  The great-aunt also told the liaison that she had not applied for guardianship of petitioner and that petitioner’s mother had no knowledge that she was requesting enrollment in respondent’s schools.  Based on these representations, the liaison denied petitioner’s request for enrollment.

On or about October 17, 2017, petitioner’s great-aunt again requested enrollment in respondent’s schools on behalf of petitioner.  On October 18, 2017, petitioner was enrolled in respondent’s schools as an unaccompanied youth.

Subsequently, the liaison contacted petitioner’s mother, who acknowledged that she had argued with petitioner before she left.  Petitioner’s mother also stated that she let petitioner stay with her great-aunt with the expectation that petitioner would return to her residence at the start of the 2017-2018 school year.  Petitioner’s mother further indicated that she had attempted, with the assistance of the police and the courts, to get petitioner to come back home.

On November 27, 2017, the liaison notified respondent’s assistant superintendent that she had learned that the CPS investigation into petitioner’s mother had been closed and that CPS determined that petitioner’s mother’s home was safe.

By letter dated November 27, 2017, the assistant superintendent notified petitioner and her great-aunt that there was no legal basis for petitioner to be enrolled in respondent’s schools pursuant to McKinney-Vento.

By letter dated January 5, 2018, CPS formally notified the liaison that the report of child abuse or maltreatment against petitioner’s mother was “unfounded.”  This appeal ensued.

Petitioner asserts that she is an unaccompanied youth and that she is homeless because she is sharing the housing of others due to the loss of housing, economic hardship or similar reason.  Petitioner states that she is residing with her great-aunt because her mother physically assaulted her.  Petitioner asserts that, in addition to her great-aunt, she lives with her great-aunt’s daughter and two grandchildren.  Petitioner specifically claims that she shares a bedroom with one of the grandchildren, who is six years old.  Petitioner seeks a determination that she is a homeless unaccompanied youth entitled to attend respondent’s schools tuition-free and to receive transportation.

Respondent maintains that petitioner has failed to meet her burden to demonstrate a clear legal right to the relief requested.  Respondent contends that petitioner is not a homeless unaccompanied youth under applicable law.  Finally, respondent maintains that its actions were not arbitrary, capricious or an abuse of discretion.

Education Law §3209(1)(a) defines “homeless child” as:

  1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
  1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
  2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
  3. abandoned in hospitals; or
  4. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
  5. an unaccompanied youth ...; or
  1. a child or youth who has a primary nighttime location that is:
  1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
  2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....[2]

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.

Pursuant to McKinney-Vento, the term “unaccompanied youth” includes a “homeless child or youth not in the physical custody of a parent or guardian [emphasis supplied]” (42 USC §11434a[6]; Education Law §3209[1][a][1][v]; 8 NYCRR §100.2[x][1][iii][a][6]).  Under this definition, the youth must be both homeless and not in the physical custody of a parent or guardian (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  Section 100.2(x)(1)(iii)(a)(6) of the Commissioner’s regulations also specifies that the term “unaccompanied youth,” which includes a homeless child or youth not in the physical custody of a parent or guardian, does not include a child or youth who is residing with someone other than a parent or legal guardian for the sole reason of taking advantage of the schools of the 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, petitioner does not fit the definition of a homeless unaccompanied youth under either State or federal law. The record reflects that the student is living in a fixed, regular and adequate nighttime residence and petitioner has not demonstrated otherwise.  Petitioner asserts that she is living “doubled up” in her great-aunt’s three-bedroom home and that such arrangement is temporary.  She states that in addition to the great-aunt, her current residence is shared with her great-aunt’s daughter and two grandchildren.  Other than her statement that she shares a bedroom with one of the grandchildren, however, petitioner presents no evidence that her living arrangement is inadequate (see Appeal of M.G., 57 Ed Dept Rep, Decision No. 17,139; Appeal of E.M.F., 52 id., Decision No. 16,538).

Additionally, petitioner has not established that her living arrangement is temporary or transitional.  The petition contains only conclusory statements by petitioner that the arrangement with her great-aunt is temporary.  To the extent petitioner argues in her verified reply that the living arrangement at her great-aunt’s home is temporary because she could be asked to leave at any time, petitioner has failed to demonstrate that the loss of current housing is imminent or that there is a time limit as to how long she can stay there (see Appeals of S.R. 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of Student with a Disability, 52 id., Decision No. 16,404).

While I empathize with petitioner’s claimed reasons for leaving her mother’s home, the record contains contradictory evidence on this point.  Specifically, while petitioner asserts that her mother physically abused her, the record indicates that CPS found that this claim of abuse was unfounded and that petitioner’s mother’s home was “determined as safe.”  Petitioner’s claims appear to concern a custody matter which would be more appropriately resolved in Family Court (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,938).

Thus, the record does not support petitioner’s claim that she is a homeless unaccompanied youth because she is living in a fixed, regular and adequate residence.  Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to re-apply for admission at any time, particularly if her circumstances have changed (such as a change in legal guardianship), and to submit any new information or documentation including, for example, a custody order, for respondent’s consideration.




[1] In her pleadings, petitioner refers to her great-aunt, her mother’s aunt, as her aunt.


[2] Education Law §3209(1)(a-1) excludes from the definition of “homeless child” a child in a foster care placement or receiving educational services under certain provisions of Education Law §3202 or Articles 81, 85, 87 or 88 of the Education Law, circumstances not presented in this appeal.