Appeal of A.G., on behalf of her children E.P, M.P. and D.P., from action of the Board of Education of the Amherst Central School District regarding residency and transportation.

Decision No. 16,818

(August 21, 2015)

Hodgson Russ LLP, attorneys for respondent, Ryan L. Everhart, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Amherst Central School District (“respondent”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Prior to June 2013, petitioner resided in an apartment in respondent’s district and, accordingly, her children attended the district’s schools as residents.  In June 2013, petitioner was evicted from her apartment and moved with her children to her mother’s home in the city of Buffalo outside of the district.

Despite petitioner’s relocation to Buffalo, she continued to send her children to respondent’s schools.  At some point, respondent inquired about M.P. and D.P.’s residence. 

By letter dated September 4, 2013, respondent’s staff advised petitioner of the determination that she and her children, M.P. and D.P., were not district residents and that M.P. and D.P. would not be permitted to attend the district’s schools for the 2013-2014 school year.  Petitioner did not contest respondent’s determination, nor did she indicate at that time that she was homeless.  Rather, she apparently accepted respondent’s residency determination and, according to her petition, enrolled M.P. and D.P. in school #54 in the Buffalo City School District, where they apparently attended school during the 2013-2014 school year.

However, respondent failed to realize that E.P. was related to M.P. and D.P. and was also living in Buffalo.   Consequently, E.P. continued to attend respondent’s high school during the 2013-2014 school year.  Once the error was realized, however, respondent immediately took steps to disenroll E.P.  By letter dated May 29, 2014, respondent’s high school principal/residency designee notified petitioner of his determination that E.P. also was not a district resident and provided her with an opportunity to submit information by June 11, 2014 concerning E.P.’s right to attend respondent’s schools.  However, because it was late in the school year, E.P. was allowed to attend school in the district for the remainder of the 2013-2014 school year.  Again, petitioner did not challenge respondent’s determination, nor did she indicate at that time that she and her children were homeless. It was respondent’s understanding that petitioner’s children would be attending school in the Buffalo City School District for the 2014-2015 school year.

In September 2014, petitioner attempted to enroll all three children in respondent’s school district for the 2014-2015 school year.  Petitioner claimed for the first time that she and her children were homeless under McKinney-Vento.  Petitioner made this assertion even though she was still living with her mother and her living situation had not changed since the 2013-2014 school year.

By letter dated September 9, 2014, respondent’s Director of Special Education and Pupil Personnel Services (“Director”) noted that petitioner was using the same address from which she had enrolled M.P. in the Buffalo City School District.  In addition, the Director informed petitioner of his determination that petitioner’s current residence in Buffalo was fixed, regular and adequate.  He also indicated that the district had learned that her eviction from her apartment in the district may have been due to fraud.  Finally, the Director concluded that petitioner’s children were not considered homeless pursuant to McKinney-Vento and stated that petitioner should enroll her children in the Buffalo City School District.

This appeal ensued.  Petitioner’s request for interim relief was granted on November 5, 2014.

Petitioner contends that she and her children are homeless within the meaning of McKinney-Vento because they share the housing of another person due to economic hardship or a similar reason.  Petitioner states that she, her daughters and youngest son share a room and that E.P. sleeps on the living room sofa.

Respondent asserts that petitioner and her children are not homeless within the meaning of McKinney-Vento.

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 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 children do not meet the definition of homeless children under either State of federal law.  Petitioner states in conclusory fashion that she is homeless because she and her children share the housing of another person due to a loss of housing, economic hardship or similar reason.  However, other than one statement in petitioner’s form petition that she became homeless “due to my rent not being able to be calculated right due to my income so I could pay all of what was owed,” petitioner has produced no evidence in support of her claim.  The September 9, 2014 letter from respondent’s Director indicates the district’s understanding that the eviction was based on “a court granted warrant for fraud.”  Petitioner attaches no documentary evidence to her petition other than school district enrollment forms for her children on which she merely checked a box and which do not further address her economic situation.  Respondent denies that petitioner is sharing the home of another due to economic hardship or similar reason, and petitioner has not submitted any reply to refute respondent’s assertion.

Similarly, other than conclusory statements in her form petition, petitioner has produced no evidence that she and her children lack a fixed, regular and adequate nighttime residence or are living in the kind of shelter or other accommodation described in Education Law §3209(1)(a).  Petitioner states that she is sharing a room with three of her children and that her older son sleeps on a sofa; however, she produces no evidence, such as affidavits or photographs, to support her claims. Other than petitioner’s conclusory assertions the petition is completely devoid of any evidence addressing the adequacy of petitioner’s living situation. 

Respondent maintains that petitioner’s current living arrangement is adequate and, as noted, petitioner has submitted no reply or other evidence to refute respondent’s position.  Petitioner has the burden of establishing facts sufficient to warrant the relief sought.  Here, the petition consists entirely of several conclusory statements, and petitioner has failed to provide any proof of her allegations (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; Appeal of King, 53 id., Decision No. 16,522).  I also note that petitioner never alleged that she was homeless at the time of the district’s September 4, 2013 and May 29, 2014 determinations that her children are not entitled to attend district schools, and the record reflects no change in circumstances since respondent’s previous determinations.  Accordingly, on this record, petitioner has failed to carry her burden of demonstrating that she and her children 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.  The petition contains no statement by petitioner that the arrangement is temporary.  At the time of the appeal, petitioner and her children had been residing in the out-of-district home of her mother for sixteen 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 children can reside there (see Appeal of S.D., 53 Ed Dept Rep, Decision No. 16,608).

Finally, petitioner asserts that she is seeking housing within respondent’s district but she presents no proof of this.  Indeed, I note that petitioner had enrolled two of her children in the Buffalo City School District subsequent to her relocation there.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for her children’s admission to respondent’s schools at any time, should their situation change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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