Appeal of L.F., on behalf of her daughter B.F., from action of the Board of Education of the Islip Union Free School District regarding residency.

Decision No. 15,617

(August 6, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Joseph E. Madsen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Islip Union Free School District (“respondent”) that her daughter, “B.F.”, is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 etseq., “McKinney-Vento”). The appeal must be dismissed.

In September of 2005, petitioner and B.F. moved out of respondent’s district because their apartment was allegedly condemned by the Town of Islip.  B.F. moved in with her grandmother in the Bay Shore Union Free School District.  B.F. continued to attend respondent’s schools based on petitioner’s assertion that she and her daughter were homeless and looking for an apartment in the district.

In February of 2007, petitioner met with district officials and acknowledged that B.F. lived with her grandmother and petitioner lived in an apartment in Brooklyn.  Respondent’s superintendent subsequently notified petitioner that a determination had been made that B.F. was not homeless within the meaning of McKinney-Vento, that she would no longer be able to attend respondent’s schools, and would be excluded from attendance effective March 9, 2007.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 14, 2007.

Petitioner contends that her daughter is a homeless child within the meaning of McKinney-Vento and, therefore, is entitled to attend respondent’s schools.  Respondent contends that neither the petitioner nor her daughter reside within respondent’s district and that B.F. is not homeless within the meaning of McKinney-Vento and Education Law §3209.

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 accom-modation 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.

B.F. does not fit the definition of a homeless child under state or federal law.  The record shows that B.F. has lived with her grandmother outside respondent’s district for almost two years.  She has a fixed, regular night-time residence and there is no evidence in the record that such residence is inadequate.  Additionally, according to the petition, B.F.’s grandmother provides support for and exercises control over B.F.  Petitioner resides in Brooklyn and has provided no evidence that she has made any effort to locate an apartment within respondent’s district.  In sum, petitioner has not established that B.F.’s living arrangement with her grandmother 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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Accordingly, based on the record before me, I find respondent’s determination reasonable.

THE APPEAL IS DISMISSED.

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