Appeal of J.M., on behalf of his child, from action of the Board of Education of the Mamaroneck Union Free School District regarding residency and homelessness.

Decision No. 18,463

(August 12, 2024)

Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Mamaroneck Union Free School District (“respondent” or “Mamaroneck”) that his child (the “student”) is not a homeless student within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

Petitioner and the student’s mother have joint legal and physical custody of the student.  They have never lived together. 

Prior to the events underlying this appeal, the student attended the Bronxville Union Free School District (“Bronxville”), where her mother resided.  In 2021, petitioner was evicted from his residence in New Rochelle, New York.  Both he and the student’s mother agree that he became homeless at that time and remains so.

In 2022, the student’s mother moved to a home located within the Mount Pleasant Central School District (the “out-of-district residence”).  The student, however, continued attending Bronxville as a tuition-paying non-resident (Education Law § 3202 [2]).

In February 2023, Westchester County Family Court ordered petitioner to enroll the student in respondent’s district.  The record does not reveal any connection between the student and Mamaroneck other than petitioner’s avowed interest in obtaining a residence therein.  Based on this order, respondent enrolled the student in its schools on a tuition-free basis. 

In spring 2023, respondent determined that the student exclusively resided with her mother at the out-of-district residence.  In June 2023, respondent notified Family Court that it intended to exclude the student at the end of 2022-23 school year on this basis. 

By letter dated July 25, 2023, an attorney for the student indicated that petitioner “ha[d] obtained a voucher for a residence in the district and [wa]s actively securing a residence for himself and [the student].”

In August 2023, respondent excluded the student based on its determination that the student was neither a district resident nor homeless since she lived at the out-of-district address, which was fixed, regular and adequate.  In connection with this determination, respondent made the following findings:

• Petitioner produced no evidence that he had secured a voucher or housing within its district;
• The student had resided with her mother at the out-of-district address “since at least 2022”;
• To the extent the student could be considered homeless, respondent’s district was not the district of origin—as petitioner became homeless in 2021 when he and the student lived in New Rochelle, New York—or location, as neither petitioner nor the student have ever resided within its boundaries.

This appeal ensued.

Petitioner asserts that “when [the student] stay[s] with” him, “she stays at a friend’s home some nights [and] other nights we stay [at] local motels/hotels [] in addition to [a] shelter.”  He seeks a determination that the student is entitled to attend respondent’s district as a homeless student.

Respondent maintains that it reasonably determined that the student was neither a district resident nor homeless.

First, I must address a procedural matter.  In the interest of resolving this matter, and in my discretion, I have accepted respondent’s answer and petitioner’s reply, both of which were late (8 NYCRR 275.13 [b], 275.14 [a]).

Turning to the merits, 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” (Education Law § 3209 [1] [a]).^[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]).

Homeless students may attend their school district of origin, the district they attended when they became homeless, or the school district of location, where they currently reside (8 NYCRR 100.2 [x] [1] [vi], [vii], [2]; Appeal of the Bd. of Educ. of the Moravia Cent. Sch. Dist., 63 Ed Dept Rep, Decision No. 18,303).

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).

Petitioner has not met his burden of proving that the student resides with him such that she could be considered homeless.  Respondent’s superintendent indicates that on September 26, 2023—two weeks after completing the instant petition—petitioner told a district guidance counselor and social worker that the student “continue[d] to live with her mother at” the out-of-district address.  Petitioner’s indication that the student stays at friends’ homes, hotels/motels, or a shelter “when” she stays with him does not establish that the student spends a significant amount of time with petitioner.  In this respect, petitioner submits a text message exchange purportedly between him and the student that states:

Student: hello

Petitioner: I don’t know, it looks like mom pushed for you to be kicked out and the letter says she reported your dad is not in your life

Student: woild going to the shelter helpp [sic]

Petitioner; Yes, it would solve matters

Student; then can we go

I afford this exchange little weight as it is ambiguous and uncorroborated.  Moreover, petitioner has not demonstrated that any of the places that he identified are located within respondent’s district.  While the record contains the name of two shelters, respondent indicates that neither are located within its district.[2]  Thus, taken together, petitioner’s evidence does not establish that the student resides with him at any location in Mamaroneck.

The new evidence submitted with petitioner’s reply does not affect the outcome of this appeal.  First, petitioner submits a “temporary/interim” custody order issued by Family Court on September 19, 2023 awarding him physical custody of the student.  While this order creates a presumption that the student is living with petitioner, there remains no evidence that petitioner resides within respondent’s district (compare Appeal of K.R. and T.R., 63 Ed Dept Rep, Decision No. 18,316).[3]  Second, petitioner submits a statement by a Mamaroneck resident that the student has spent many school nights at his house in September and October 2023.  To the extent he suggests that this establishes residency within respondent’s district, the letter does not, as required, “demonstrate a complete transfer of custody and control of the student” (Appeal of Breiner, 62 Ed Dept Rep, Decision No. 18,277).  As such, the appeal must be dismissed (Appeal of C.M., 57 Ed Dept Rep, Decision No. 17,200).         

It is unfortunate that Family Court unnecessarily interjected Mamaroneck into this custody dispute, apparently based on petitioner’s avowed intent to obtain a residence therein.  The stability of the student’s education would have been better served by an order that considered the principles of residency described herein.

To the extent they are not addressed herein, petitioner’s remaining claims are without merit. 

THE APPEAL IS DISMISSED.

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