Decision No. 18,086
Appeal of L.R., on behalf of her children, from action of the Board of Education of the South Huntington Union Free School District regarding residency and transportation.
Decision No. 18,086
(February 1, 2022)
Ingerman Smith, L.L.P., attorneys for respondent, David F. Kwee, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the South Huntington Union Free School District (“respondent”) that her 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. The appeal must be sustained.
Petitioner and her children resided within respondent’s district until August 2015, when petitioner was evicted from their in-district housing. The family then moved into a house with petitioner’s aunt outside the district. In or around October 2017, petitioner moved to a second location outside of the district, a two-bedroom apartment, again with her aunt (the “out-of-district address”). Respondent allowed the students to continue attending its schools as homeless students.
By letter dated April 14, 2021, respondent’s assistant superintendent of student services (“assistant superintendent”) asked petitioner to provide additional information about her current housing.
By email dated April 14, 2021, to respondent’s social worker, petitioner stated that she was having financial difficulties; could not afford non-subsidized housing or qualify for subsidized housing; and that her living arrangement was not the result of personal choice. Petitioner also stated that her current living situation was temporary because her aunt was behind in paying rent and may have to move. Petitioner reported that the space was inadequate because she had to share a single bedroom with her three children.
By letter dated May 20, 2021, the assistant superintendent notified petitioner that the students would be excluded from respondent’s district as of the 2021-2022 school year because petitioner was not a district resident and the students were not homeless within the meaning of McKinney-Vento. This appeal ensued.
Petitioner claims that the students are homeless because she and her three children are sharing the housing of other persons due to a loss of housing, economic hardship, or a similar reason. Specifically, petitioner asserts that she and her three children are “doubled-up,” occupying one bedroom in a two-bedroom apartment with the other bedroom occupied by her aunt. Petitioner further asserts that her aunt is “six months behind on rent,” and that the “landlord told [the aunt] to move.” Petitioner seeks a determination that the students are homeless and eligible to attend respondent’s district.
Respondent avers that the students are not homeless within the meaning of McKinney-Vento because petitioner has not established that her apartment is not a fixed, regular, and adequate nighttime residence.
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.” 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 ).
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 the record before me, I find that the students fit the definition of homeless children under State and federal law. Petitioner has established that she and her children lack a fixed, regular, and adequate nighttime residence. Petitioner further submits that, since her eviction from the in-district address in 2015, she and the students have resided “doubled-up” at two different locations with her aunt outside of the district. Petitioner maintains that, in her current living situation, her aunt sleeps in one bedroom while she and the three students sleep together in the second bedroom. She describes the family as having “no space” within the apartment. Respondent did not conduct a home visit of the out-of-district address and has not produced any evidence to refute petitioner’s assertions. Although it submits “photographs” of the kitchen, bathroom, and washer/dryer, respondent has not explained where it obtained these photographs or when they were taken. In any event, respondent does not submit photographs that portray the bedrooms or other living spaces. Under these circumstances, petitioner’s living situation is inadequate (see Appeal of T.R., 59 Ed Dept Rep, Decision No. 17,794 [student homeless where his grandparents slept in the sole bedroom, he slept on a couch in the living room, and petitioner and her 19-year-old daughter shared a twin-sized day bed in the living room]; Appeal of R.W., 49 id. 73, Decision No. 15,962 [student homeless where petitioner and student shared a one-bedroom apartment with another person, student slept on a couch, and petitioner slept on an air mattress on the floor]; Appeal of G.R., 49 id. 50, Decision No. 15,955 [student homeless where petitioner, student, and student’s child shared a three-bedroom house with six other people and student slept on a couch in the living room with minimal privacy]).
With further respect to the temporary or transitional nature of petitioner’s living circumstances, petitioner has submitted evidence demonstrating her efforts to obtain permanent housing within respondent’s district. This includes email and text message conversations with a housing organization and an apartment complex. Petitioner also asserts, and respondent does not refute, that her aunt is six months behind on her rent and facing eviction. I acknowledge that petitioner has been living with her aunt at two different out-of-district residences for several years. However, an inadequate living arrangement such as this does not become a fixed, regular, and adequate nighttime residence merely due to its duration (see Appeal of T.R., 59 Ed Dept Rep, Decision No. 17,794; Appeal of R.M., 54 id., Decision No. 16,643).
The two appeals cited by respondent are distinguishable. In Appeal of K.W. (48 Ed Dept Rep 151, Decision No. 15,912), the Commissioner held that a residence was fixed, regular and adequate where: (1) four people shared two bedrooms (the parent slept in one bedroom; the student, who was in eleventh grade, slept in the living room;, and two siblings slept in the other bedroom); (2) the student’s personal items were stored in the living room walk-in closet; and (3) petitioner paid a fee to stay in the apartment. Here, by contrast, six (and, according to petitioner, occasionally seven) individuals share two bedrooms in an apartment, with petitioner and her three children sharing a single bedroom. Additionally, petitioner’s circumstances do not resemble the economic arrangement in Appeal of K.W. (48 Ed Dept Rep 151, Decision No. 15,912) as she pays no rental fee, her aunt is several months behind in paying the rent, and petitioner is actively looking for housing within respondent’s district.
In Appeal of a Student with a Disability (44 Ed Dept Rep 94, Decision No. 15,108), the Commissioner held that the petitioner failed to prove that she was forced to leave her in-district housing due to “loss of housing” as opposed to personal preference. Additionally, with respect to adequacy, the Commissioner found that the “petition include[d] only conclusory statements ... that [the] residence [could not] accommodate three additional people on a permanent basis, and ... that a single bathroom for six people is not adequate.” Here, by contrast, there is no dispute that petitioner’s family was compelled to leave respondent’s district due to eviction. Additionally, petitioner has explained her living circumstances in greater detail than the petitioner in Appeal of Student with Disability (44 Ed Dept Rep 94, Decision No. 15,108).
For the reasons set forth above, I find that petitioner has met her burden of proving that the students lack a fixed, regular, and adequate nighttime residence.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent permit the students to attend the South Huntington Union Free School District without the payment of tuition and provide transportation services to the students for the duration of their homelessness, including but not limited to those provisions regarding a child’s terminal year in a school building, where applicable
END OF FILE
 Respondent does not argue that the first out-of-district address was fixed, regular and adequate such that it would be relieved of its responsibility as the district of origin (see Appeal of T.S., 61 Ed Dept Rep, Decision No. 18,029; Appeal of L.C., 57 id., Decision No. 17,143).
 Education Law § 3209 excludes from the definition of “homeless child” a child who is in a foster care placement or receiving educational services under certain provisions of Education Law § 3202 or articles 81, 85, 87, or 88 of the Education Law – circumstances not presented in this appeal.
 It appears that the photographs were obtained from a publicly accessible listing. A notation on one of them indicates that a listing “expired on 8/22/16.”
 This prospect is corroborated by the fact that the aunt was evicted from the previous out-of-district address.