Appeal of K.T., on behalf of her children, from action of the Board of Education of the Averill Park Central School District regarding residency and homelessness.

Decision No. 18,293

(June 29, 2023)

Honeywell Law Firm, PLLC, attorneys for respondent, Shannon M. Capozzola, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Averill Park Central School District (“respondent”) that her three children (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance 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 the events described in this appeal, the students were enrolled in respondent’s schools as district residents.  

In January 2020, petitioner and the students were evicted from their apartment and began living at petitioner’s father’s home, outside of the district (the “out-of-district residence”).  Respondent thereafter enrolled the students as homeless students, and the students remained enrolled in the district until the events described herein. 

In June 2022, respondent requested updated housing information from petitioner and did not receive a response.  By letter dated July 13, 2022, respondent’s superintendent informed petitioner that the district had determined the students were permanently residing at the out-of-district residence and were no longer entitled to attend the district’s schools as homeless students.  

On July 22, 2022, respondent’s director of teacher and student supports spoke with petitioner via telephone and obtained additional information.  After reviewing this information, by letter dated August 15, 2022, respondent made a final determination that the students are not homeless as petitioner and the students have a fixed, regular, and adequate residence.  This appeal ensued. 

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

Respondent contends that petitioner has failed to meet her burden of proving that the out-of-district residence is not fixed, regular, or adequate.  Respondent argues that its determination was not arbitrary or capricious and that petitioner has failed to establish that the students are entitled to attend its schools as homeless students.

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.”[1]  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, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has failed to meet her burden of proving that the students are homeless under State or federal law.  The record shows that petitioner and the students reside at the out-of-district residence, which, according to a property search, includes two bedrooms, two bathrooms, two kitchens, a loft area, a living room, and a full basement.  The petition confirms that:  (1) the students share a bedroom, each with their own beds or mattresses; (2) the students’ grandfather has his own bedroom; and (3) petitioner sleeps in the loft area.  The petition also indicates that the out-of-district residence has heating and plumbing.    

Although petitioner indicates that the students share the out-of-district address with their grandfather, an aunt, and a cousin, the mere fact that the students are 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 students have resided at the out-of-district address with petitioner since at least January 12, 2020.  There is no indication that the students need to vacate the out-of-district address or that there is a fixed time as to how long they may remain.  In fact, petitioner confirms there is no such deadline (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, petitioner has failed to meet her burden of proving that the students lack a fixed, regular and adequate nighttime residence.[2]  Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious. 

THE APPEAL IS DISMISSED.

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