Appeal of C.M., on behalf of her grandchild, from action of the Board of Education of the City School District of the City of North Tonawanda regarding residency and transportation.

Decision No. 18,144

(July 7, 2022)

Harris Beach PLLC, attorneys for respondent, Jeffrey Weiss and Andrew Mark, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of North Tonawanda (“respondent”) that her grandchild (“the student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.

From 2014 to November 2019, the student resided with his parents in respondent’s district.  In fall 2019, the student’s father passed away.  Thereafter, in November 2019, the county department of social services placed the student with petitioner, the student’s grandmother, who resides in a neighboring district (the “out-of-district address”).  In and around this time, respondent informed petitioner that she should enroll the student in the neighboring district.  Nevertheless, respondent allowed the student to continue attending respondent’s schools through the 2020-2021 school year as a homeless student.[1]

On February 3, 2021, Family Court awarded (1) joint legal custody of the student to the student’s mother and petitioner, and (2) primary residential custody of the student to petitioner. 

By letter dated August 31, 2021, respondent informed petitioner that the student may no longer qualify as “homeless” because:  (1) the student had resided with her at the out-of-district address since November 2019; and (2) Family Court awarded her primary residential custody of the student in February 2021.  Respondent allowed petitioner the opportunity to provide additional evidence regarding her housing situation before a final homeless determination was made for the student.

By letter dated September 7, 2021, the student’s mother informed respondent that she was the sole owner of the out-of-district address and that she was allowing petitioner and the student to temporarily sleep in the home until they were able to find suitable/affordable housing and “until further notice.”

By letter dated September 15, 2021, respondent’s superintendent informed petitioner that the student was no longer eligible to attend the district’s schools because he was neither a district resident nor homeless.  Respondent informed petitioner that the student would be excluded from respondent’s district effective October 15, 2021.  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.”[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 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 out-of-district address and does not allege that it is inadequate in any manner (see Appeal of T.B.-D., 58 Ed Dept Rep. Decision No. 17,605, Appeal of J.B., 56 id., Decision No. 17,115).  Although petitioner indicates that the student shares the out-of-district address with her, an aunt, and a cousin, 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 out-of-district address is temporary or transitional.  The record reflects that the student has resided at the out-of-district address with petitioner since at least November 2019.  There is no indication that the student needs to vacate the out-of-district 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).  

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 respondent’s determination that the student was not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

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