Appeal of T.S., on behalf of her child J.W., from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and transportation.

Decision No. 18,029

(August 10, 2021)

Frazer and Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her child (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 respondent’s schools or receive transportation.  The appeal must be dismissed.

Prior to the events described in this appeal, petitioner and the student resided within respondent’s district and the student attended respondent’s schools.  In May 2016, petitioner advised the district that she and the student “had been asked to vacate” their in-district address due to black mold and that they had moved in with her mother (the student’s grandmother) in West Babylon, New York (the “West Babylon address”).[1]  Respondent subsequently allowed the student to attend the district’s schools during the 2016-2017 school year as a homeless student.  

In October 2017, petitioner informed the district that she had moved to another location outside of the district in Northport, New York (the “Northport address”) where she was “doubled-up” with a friend.  The student continued attending respondent’s schools as a homeless student during the 2017-2018 school year.

By letter dated June 20, 2018, respondent’s assistant superintendent for finance and facilities (“assistant superintendent”) informed petitioner that the student was no longer eligible to attend the district’s schools because she was neither a district resident nor homeless.  The assistant superintendent concluded that the Northport address was “a fixed, regular and adequate nighttime location.”  The assistant superintendent informed petitioner that, unless she submitted additional documentation, the student would be excluded from respondent’s district effective July 1, 2018.  Despite the exclusion letter, respondent indicates that it permitted the student to attend a six-week summer school program “as a courtesy.”

On September 4, 2018, petitioner informed the district’s homeless liaison that she had been evicted from the Northport address and that she and the student had moved back with the grandmother at the West Babylon address.  Petitioner submitted a stipulation of settlement from a pending proceeding in Suffolk County District Court, initiated by her landlord, as evidence of the eviction.  The district allowed the student to continue attending its schools as a homeless student through the 2018-2019 school year.  The district also allowed the student to remain enrolled during the 2019-2020 school year since it was her terminal year in one of respondent’s elementary schools.

The record contains a letter dated June 12, 2020 in which the assistant superintendent informed petitioner that the student was no longer eligible to attend the district’s schools because the West Babylon address was “fixed, regular, and adequate.”  Therefore, the letter reasoned, the student was neither a district resident nor homeless.[2]  The assistant superintendent informed petitioner that, unless she provided additional documentation, the student would be excluded from the district’s schools effective June 26, 2020.  Petitioner denies that she received this letter or any other “documentation involving [the student’s] denial or non enrollment [sic] in school.”  

On September 14, 2020, the grandmother visited one of the district’s middle schools seeking school supplies for the student.  According to respondent, “the grandmother was advised that [the student] had been excluded from the [district’s schools] back in June of 2020.”  This appeal ensued.

Petitioner claims that the student is homeless within the meaning of McKinney-Vento because she is “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.”  Petitioner seeks a determination that the student is homeless and, thus, entitled to attend respondent’s schools and receive transportation without payment of tuition.

Respondent argues that its determination was not arbitrary or capricious and that petitioner has failed to establish that the student is entitled to attend its schools as a homeless student.

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.”[3]  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 lacks a fixed, regular, and adequate nighttime residence.  Petitioner contends that, due to an injury and resultant surgery, she was unable to work for a period of time; petitioner asserts that this resulted in her April 2017 eviction.  Petitioner further asserts that she currently requires “aggressive inpatient treatment” as a result of “mental health illness/crisis,” which necessitates that the student reside with her grandmother at the West Babylon address.  Along with her petition, petitioner submits two letters as evidence.  The first letter, dated September 23, 2020, is from a residential program specialist at a psychiatric center and states that petitioner moved into a crisis shelter at the psychiatric center on September 23, 2020.  The second letter, dated September 16, 2020, is from Children’s Care Coordination Services and indicates that the student has received support since August 2, 2019.  This letter further asserts that the student is “temporarily placed” with the grandmother and that petitioner intends to find a permanent home for herself and the student. 

While I sympathize with petitioner’s circumstances, I cannot find, based on the record before me, that she has met her burden of proving that the student lacks a fixed, regular, and adequate nighttime residence.  As an initial matter, petitioner does not provide any information regarding the nature or characteristics of the West Babylon address and does not allege that it is inadequate in any manner (see, e.g., Appeal of T.B.-D., 58 Ed Dept Rep. Decision No. 17,605, Appeal of J.B., 56 id., Decision No. 17,115).  Respondent asserts that, based on real estate records, the West Babylon address is a 1,128-square-foot single-family home.  Although petitioner indicates that the student shares the West Babylon address with the grandmother, the mere fact that the student is sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of C.R., 60 Ed Dept Rep, Decision No. 17,876; Appeal of Appeal of C.M., 58 id., Decision No. 17,664).

Petitioner has also failed to establish that the West Babylon address is temporary or transitional.  The record reflects that the student has resided at the West Babylon address with the grandmother since at least September 2018.  There is no indication that the student needs to vacate the West Babylon address or that there is a fixed time as to how long she may remain (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864, Appeal of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).  The fact that petitioner intends to find a different home for herself and the student does not, in and of itself, make the West Babylon address temporary or transitional (see Appeal of F.B., 50 Ed Dept Rep, Decision No. 16,197).

While petitioner has experienced a series of evictions or non-voluntary departures from residences, the record reflects that respondent accommodated these circumstances by continuing the student’s enrollment as a homeless student.[4]  To be sure, an eviction or a parent’s admission to a mental health center could give rise to a claim of homelessness.  Here, however, the record reflects that petitioner did not appeal respondent’s June 20, 2018 determination that the Northport address was a fixed, regular, and adequate nighttime address.  Thus, the school district that serves the Northport address would constitute the student’s district of origin with respect to any subsequent claim of homelessness (Appeal of L.C., 57 Ed Dept Rep, Decision No. 17,143).

Therefore, based upon the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular, and adequate nighttime residence or is living in a shelter or other temporary living accommodation as set forth in Education Law § 3209.  Accordingly, I cannot find that respondent’s determination that the student is not homeless was arbitrary or capricious.

Petitioner retains the right to reapply for admission on the student’s behalf on the basis of residency at any time and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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