Appeal of M.M., on behalf of her niece B.K., from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 18,013

(July 6, 2021)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Baldwin Union Free School District (“respondent”) that her niece (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Petitioner is the student’s aunt.  On or about January 24, 2020, petitioner submitted a registration packet to register the student in respondent’s district.  Petitioner identified herself and the student’s father as the student’s guardians.  Petitioner further indicated that the student’s father had “[l]egal [c]ustody” of the student; however, she indicated that the student was residing with petitioner and other members of petitioner’s family at an address within respondent’s district.  Petitioner additionally represented that the student was living “[i]n permanent housing.”

On January 28, 2020, respondent’s director of pupil services (“director”) met with petitioner, the student’s father, and the district registrar to discuss the student’s living situation and custody arrangement.  According to the director, petitioner indicated during this meeting that the student had lived with her father in Queens, New York during the 2017-2018 and 2018-2019 school years.  Petitioner further stated that, after the 2018-2019 school year, the student briefly lived with her mother in Jamaica but returned to the United States on December 15, 2019, at which point petitioner offered that the student could live with her.

With respect to custody of the student, petitioner and the student’s father advised the director that the father “had legal custody” of the student; however, petitioner indicated, according to the director, that the student did not live with her father because he lived with his wife (the “stepmother”), who did “not want to be bothered with a young child.”  Petitioner also reported that she would not seek “full legal guardianship” of the student “because once [the father] leaves [the stepmother], the [s]tudent would reside with him again.”

In a letter dated January 28, 2020 to petitioner and copied to the student’s father, the director indicated that petitioner would not be permitted to enroll the student in respondent’s district because the student’s “parent [had] not relinquish[ed] full care, custody and control” of the student.[1]  Petitioner subsequently asserted that the student was homeless.  Based upon this representation, respondent enrolled the student in its district as of February 10, 2020.

On or about February 10, 2020, respondent’s homeless liaison conducted a home visit at petitioner’s residence, which he determined to be “a fixed, adequate and regular location.”  In this respect, the homeless liaison observed that the student had her own bedroom at the residence.  Although petitioner indicated to the homeless liaison that the stepmother “did not want to care for a young child,” the homeless liaison asserts in an affidavit that “[a]t no point did [p]etitioner [otherwise] state why the [s]tudent could not live” with the father and stepmother.

In a letter dated February 24, 2020, the director informed petitioner of the district’s determination that the student was not entitled to attend its schools as a homeless student.  This appeal ensued.

Petitioner asserts that the student is homeless because she is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.  For relief, she seeks a determination that the student is entitled to attend respondent’s schools as a homeless student.

Respondent asserts that the appeal must be dismissed because petitioner has failed to prove that the student is homeless within the meaning of McKinney-Vento or the Education Law.

The appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

In the petition, petitioner states that she is the student’s aunt and notably does not identify herself as the student’s guardian.  Respondent has submitted evidence and sworn statements from the director and homeless liaison indicating that the student’s father remains her legal guardian and has not made a total transfer of custody and control of the student to petitioner.  Petitioner did not submit a reply or otherwise respond to these assertions.  Simply being a family member of a student does not confer standing upon a petitioner in an appeal pursuant to Education Law § 310 (see Appeal of A.S., 59 Ed Dept Rep, Decision No. 17,801 [grandparent lacked standing]; Appeal of Hertel, 49 id. 267, Decision No. 16,021 [same]).  Therefore, in the absence of any evidence that petitioner is the student’s parent, custodian, or legal guardian, the appeal must be dismissed for lack of standing.

Even assuming, arguendo, that petitioner had standing to bring this appeal, it would be dismissed on the merits.  Pursuant to Education Law § 3209 (1) (a), a “homeless child” is:  (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “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.”[2]  Both Education Law § 3209 and section 100.2 (x) of the Commissioner's regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a [2]). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Petitioner has failed to meet her burden of proving that the student is homeless.  Although petitioner identifies the occupants of her residence and indicates that the student “is sharing the housing of other persons due to loss of housing, economic hardship or a similar reason,” she provides no details or evidence about the adequacy of the living conditions therein (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  The mere assertion that a student is sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of C.M., 58 Ed Dept Rep, Decision No. 17,664; Appeal of A.M., 57 id., Decision No. 17,146).  Additionally, as indicated above, the homeless liaison conducted a home visit and determined that petitioner’s residence was adequate, specifically noting that the student had her own bedroom.

Furthermore, there is no evidence that petitioner’s residence is temporary or transitional.  In the registration materials, petitioner indicated that she owns her residence and has resided therein since July 2017.  The record further indicates that the student began living with petitioner in December 2019.  Petitioner does not assert, and the record contains no evidence indicating, that she or the student need to vacate petitioner’s residence or that there is a fixed time limit as to how long they may remain (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 a Student with a Disability, 52 id., Decision 16,404).  Indeed, in the January 2020 registration packet, petitioner indicated that the student was living “[i]n permanent housing.”

Based upon the record before me, petitioner has failed to demonstrate that the student is homeless within the meaning of McKinney-Vento insofar as she has not proven that the student lacks a fixed, regular and adequate nighttime residence or is living in the kind of shelter or other accommodations set forth in Education Law § 3209 (1) (a).  Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

Although the appeal must be dismissed for the reasons described above, I note that the student’s legal guardian has the right to reapply 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.

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