Decision No. 17,125
Appeal of S.P., on behalf of her children A.G and T.G., from action of the Board of Education of Elmont Union Free School District regarding residency.
Decision No. 17,125
(July 18, 2017)
Colum P. Nugent, Esq., attorney for respondent
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that her children, A.G. and T.G. (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. The appeal must be dismissed.
At the outset of the 2011-2012 school year, petitioner enrolled the students in respondent’s elementary school. At that time, petitioner and the students were living at an address within the district (“in-district address”). The record indicates that petitioner’s landlord terminated her month-to-month tenancy of the in-district address effective July 31, 2012 and that petitioner and the students were subsequently evicted. Petitioner and the students moved in with petitioner’s friend at an address outside of the district. The students were considered by respondent to be homeless and continued to attend school in respondent’s district with transportation. In April 2014, petitioner left her friend’s house and moved in with her mother, at her childhood home, a residence outside the district (“out-of-district residence”) where she and her children currently live.
By letter dated August 18, 2016, respondent’s superintendent notified petitioner that because she “established a permanent residence” at the out-of-district address, the students’ attendance at the district “is unlawful.” The letter advised petitioner to register the students at the school district in which she is residing and advised her of the right to an administrative review of the decision.
A residency appeal review hearing was held on September 14, 28 and October 20, 2016. During the first day of hearing, petitioner testified that she, the students, and her mother live in the attic of the out-of-district residence. She testified that there are three beds and that her mother is only there during the week - not on weekends. The hearing was adjourned and continued so that respondent could conduct an inspection of petitioner’s living arrangement.
On September 14, 2016, respondent’s homeless liaison and respondent’s residency coordinator conducted a home visit to the out-of-district address. The homeless liaison testified that she saw that the:
[T]hird floor was the full length of the house. [She] saw two double queen size beds and ... another bed behind a curtain. Personal belongings, toys, [and] clothes.
She further testified that in her opinion, the housing was fixed, regular and adequate and therefore, should be considered permanent housing. The residency coordinator also testified that on the third floor he remembered seeing “the curtain and there was a bed behind the curtain” as well as “two double beds ... clothes, toys ... things that a regular living quarter would have.”
Petitioner contends that the students are homeless and therefore should be allowed to continue attending school in respondent’s district. She states that she and the students are “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason.” She also alleges that they are staying in a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation, such as a car, park, public space, abandoned building, substandard housing, bus or train stations or similar setting.
Respondent argues that, because petitioner’s current residence is the residence in which she lived before moving to respondent’s district, then “she was homeless before moving to Elmont and the New York City Public School System is her district of origin.” Respondent argues that the appeal should be dismissed because petitioner is not homeless, because she has made no effort to find other housing, that she admitted under oath that she is not homeless, and that her current residence is fixed, regular and adequate.
At all times relevant to this appeal, Education Law §3209(1)(a) defined “homeless child” as:
(1)a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
(i)sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
(ii)living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
(iii)abandoned in hospitals;
(iv)awaiting foster care placement; or
(v)a migratory child ... who qualifies as homeless under any of the provisions of clauses
(i) through (iv) of this subparagraph or subparagraph two of this paragraph; or
(2)a child or youth who has a primary nighttime location that is:
(i)a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
(ii)a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings….
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
Petitioner’s children do not fit the definition of a homeless child under either State or federal law. As stated above, petitioner alleges that she and the students lack a fixed, regular, and adequate night-time residence and are sharing the housing of other persons due to loss of housing, economic hardship or other similar reasons. Petitioner also alleges that they are staying in a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation, such as a car, park, public space, abandoned building, substandard housing, bus or train stations or similar setting.
Petitioner offers no evidence that her children currently lack a fixed, regular and adequate night-time residence other than her assertion that there are four people sharing one room. The record indicates that petitioner and her three children, one of whom is an infant or toddler, share the third floor of her mother’s home with her mother. Other family members have bedrooms on the second floor. Though characterized by petitioner as an attic, respondent’s site visit indicates that the shared room encompasses the entire third floor of the house and has two double beds and one other bed. The house also includes a living room, dining room and bathrooms. On this record, petitioner has not provided sufficient evidence to support a claim that the house is inadequate due to overcrowding (see Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038). Therefore, petitioner has not met her burden of proving that her children currently lack a fixed, regular and adequate night-time residence and are homeless (see Appeal of R.V., 56 Ed Dept Rep, Decision No. 16,923; Appeal of Z.P. and D.P., 54 id., Decision No. 16,639; Appeal of T.C., 53 id., Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404). Similarly, petitioner has not proven that her children are living in a public or private place not designed for, or regularly used as, a regular sleeping accommodation.
Moreover, petitioner has not established that her current residence is temporary or transitional. The record indicates that she and her children have lived in the out-of-district residence since April 2014 and petitioner testified at the residency hearing that she intends to remain at that residence until she finds housing in respondent’s school district. There is no evidence in the record that petitioner and her children need to vacate their current residence or that there is a fixed time limit as to how long they may remain (Appeal of V.C.B., 56 Ed Dept Rep, Decision No. 17,038; Appeal of A.N., 55 id., Decision No. 16,992).
Accordingly, I find that respondent’s determination that petitioner’s children are not homeless was not arbitrary or capricious.
Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s schools on her children’s behalf at any time, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The petition indicates that petitioner appeals from a decision made on October 20, 2016. However, a review of the residency appeal hearing transcript indicates that no decision was made on that date. According to respondent’s answer, a written decision from the administrative review was issued on February 3, 2017. While the record does contain the written decision, it is not dated.
 Effective October 1, 2016, §11432(g)(3)(E)(i) of the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, now requires that if a dispute arises surrounding a child’s eligibility, school selection or enrollment, such student shall be immediately enrolled pending final resolution of the dispute, including all available appeals (42 U.S.C. §11432[g][E][i]). Therefore, no application for a stay in this appeal was necessary.
 Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (42 U.S.C. §11434a). Effective April 20, 2017, children or youth awaiting foster care placement are no longer included in the definition of “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017. However, those changes are not relevant to a determination in this appeal.