Appeal of A.M., on behalf of her child, from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and homelessness.

Decision No. 18,426

(July 1, 2024)

Frazer & 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”).  The appeal must be dismissed.

The student initially enrolled in respondent’s district in 2015.  Sometime thereafter, petitioner and the student moved outside the district.  Respondent permitted the student to continue attending respondent’s schools as a homeless student for the 2019-2020, 2020-2021, and 2021-2022 school years. 

In July 2021, respondent suspected that petitioner was no longer homeless.  Although the homeless liaison and the assistant superintendent made numerous inquiries, including meeting with petitioner on August 16, 2021, petitioner “continuously refused to answer ... questions or submit any updated information to support” her claim of homelessness.  For example, petitioner refused to provide the address of a “friends’ house” where she claimed to reside.  Additionally, petitioner did not provide respondent with any evidence that she, in fact, lived at a hotel where she had claimed to reside since 2019.

During the 2022-2023 school year, the district conducted a residency investigation.  An investigator learned that petitioner was associated with an address in Bethpage, New York (the “out-of-district address”).  The investigator surveilled this address on 15 school day mornings throughout fall 2022 and spring 2023.  On eight of these mornings, the investigator observed petitioner and the student departing the out-of-district address and driving to the student’s school, at which time the student was dropped off.

On August 15, 2023, respondent’s assistant superintendent spoke with petitioner by telephone.  On this call, petitioner denied “living in Bethpage” and stated that she was “currently in a hotel.”  She claimed that the family sometimes lived “with friends” or stayed in hotels in Massapequa or Plainview.  Petitioner did not provide any dates or evidence to corroborate her claims. 

Respondent gave petitioner the opportunity to provide additional evidence supporting her homelessness claim, but ultimately found petitioner’s proof—“a few miscellaneous receipts for a handful of alleged overnight stays at local hotels”—to be insufficient.  Accordingly, respondent excluded the student from the district as of October 2, 2023.  This appeal ensued.

Petitioner contends that the student is homeless because they have been “living in hotels with her family” since 2019.  As proof, she submits hotel reservations and receipts[1] from 2022 and 2023.

Respondent argues that its determination was reasonable based upon its surveillance and other evidence.  Respondent further contends that it reasonably declined to credit petitioner’s explanations regarding her living circumstances given her lack of credibility and cooperation.

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]). 

Staying in hotels or motels does not necessarily render a family homeless; parents remain obligated to prove that their living circumstances are inadequate and temporary (see Appeal of W.A., 62 Ed Dept Rep, Decision No. 18,250 [students and two adults living in a motel room demonstrated that the living situation was inadequate]; Appeal of a Student with a Disability, 60 id., Decision No. 17,920 [parent sufficiently demonstrated that she and her child resided at numerous hotels “due to a lack of alternative adequate accommodations”]). 

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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).

On appeal, petitioner asserts that she and the student became homeless when her spouse “abandoned [the] family and left [them] with nowhere to live.”  She asserts that she and the student now live in hotels “due to [a] lack of adequate alternative accommodations.”  As proof, petitioner submits documents reflecting reservations and stays at three different hotels in October 2022 and May, July, and August 2023 as follows:

• Hotel 1 (Plainview): eight reservations in October 2022, five reservations in May 2023, and one reservation in July 2023.
• Hotel 2 (unidentified): receipts reflecting three stays in July 2023 and thirteen stays in August 2023.
• Hotel 3 (Massapequa): receipts reflecting three stays in August 2023.

The receipts demonstrate that petitioner and the student stayed at hotels during July and August 2023, while school was not in session.  However, the reservations—which comprise the majority of the dates—are of limited probative value because they merely reflect an intention to stay overnight. 

Additionally, petitioner’s evidence must be considered within the context of respondent’s residency investigation and interactions with petitioner.  Petitioner was not forthcoming about her living circumstances, and respondent questioned her credibility.  Respondent then conducted surveillance, which depicted petitioner departing from a previously undisclosed address on 8 out of 15 weekday mornings.  In response, petitioner denied “living in Bethpage.”  Petitioner also waited until this appeal to provide supporting documentation that respondent repeatedly requested. 

Given the underlying course of events, respondent determined that petitioner lacked credibility.  I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that such determination is inconsistent with the facts (Appeal of Rahimi, 61 Ed Dept Rep, Decision No. 18,044; Appeal of Collado, 60 id., Decision No. 17,918; Appeal of K.M. and T.M., 56 id., Decision No. 17,095).  The record contains no such evidence.  As such, I find that respondent reasonably declined to accept petitioner’s assertion that she and the student lack a fixed, regular, and adequate nighttime residence (see Appeal of Rahimi, 61 Ed Dept Rep, Decision No. 18,044).  This was particularly so given petitioner’s failure to explain her presence at the out-of-district address, which appears to be a single-family home.  On this record, therefore, petitioner has failed to meet her burden of proof and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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