Decision No. 18,145
Appeal of A.B, on behalf of her child, from action of the Board of Education of the Brentwood Union Free School District regarding residency and transportation.
Decision No. 18,145
(July 7, 2022)
Bond Schoeneck & King, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel
ROSA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Brentwood Union Free 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”) and, therefore, not entitled to attend the district’s schools. The appeal must be dismissed.
The student was initially enrolled in respondent’s schools during the 2020-2021 school year. On September 30, 2021, petitioner completed a housing questionnaire wherein she indicated that the student resided within the district (the “in-district residence”).
On or about October 8, 2021, petitioner asked that the student be transported to the residence of a babysitter at a location outside of the district (the “out-of-district residence”).
On or about October 20, 2021, the district’s homeless liaison spoke with petitioner, indicating that the district was unable to accommodate her transportation request (see Education Law § 3635  [e]; Appeal of Kern, 60 Ed Dept Rep, Decision No. 17,961). During that conversation, petitioner stated that she slept at both the in-district and out-of-district residences.
On October 22, 2021, the homeless liaison met with petitioner, petitioner’s sister, and petitioner’s fiancé to discuss her residency. At that meeting, petitioner represented that she resided at the out-of-district residence with her fiancé, his children, his grandchild, and mother-in-law. The district requested, and petitioner consented to, a home visit.
On October 28, 2021, the homeless liaison and the district’s social worker conducted a home visit of the out-of-district residence and deemed it adequate. By letter dated October 29, 2021, respondent’s coordinator of registration, attendance, and census (“coordinator”) notified petitioner of the district’s determination that the out-of-district residence was fixed, regular, and adequate. Consequently, the coordinator indicated that the student would be excluded from respondent’s schools effective December 1, 2021. This appeal ensued.
Petitioner claims that she is homeless because she and the student share the housing of other persons due to a loss of housing, economic hardship, or a similar reason. Petitioner also claims that the out-of-district residence is temporary. Petitioner seeks a determination that the student is homeless and, thus, entitled to attend respondent’s schools and receive transportation without payment of tuition.
Respondent argues that the student is not homeless because there is no evidence that petitioner’s living arrangements are temporary or inadequate.
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 ).
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 failed to meet her burden of proving that the student is homeless. In support of her claim that the out-of-district residence is inadequate, petitioner states that the student shares a room with her and her fiancé, where the student has his own bed. Petitioner submits a photograph that depicts a child sleeping in a toddler bed; the photograph does not depict any portion of the surrounding room. Petitioner submits no other evidence concerning the nature of the out-of-district residence, such as a description of its living areas. Moreover, petitioner’s statement that she and the student are sharing the out-of-district residence with her fiancé and his mother does not establish its inadequacy. The fact that two families reside in a house does not automatically render the families homeless (see e.g. Appeal of M.G., 60 Ed Dept Rep, Decision No. 17,871). Thus, petitioner has not met her burden to establish that the out-of-district residence is inadequate.
Moreover, the homeless liaison and a social worker visited the out-of-district residence and observed a kitchen, living room, formal dining room, and the bedroom in question, which contained a full-size bed and a toddler bed. Based on their observations, they concluded that the residence was fixed, regular, and adequate. Petitioner has not submitted a reply to rebut respondent’s assertions or otherwise explain how her living arrangement is inadequate (see Appeal of T.B., 48 Ed Dept Rep 4, Decision No. 15,774). Therefore, on this record, I cannot conclude that the out-of-district residence is inadequate within the meaning of McKinney-Vento (Appeal of S.R., 58 Ed Dept Rep, Decision No. 17,663; Appeal of T.M., 57 id., Decision No. 17,165).
Moreover, petitioner has not established that her current residence is temporary or transitional. In support of her claim, petitioner submits a handwritten statement from an individual who asserts that petitioner and the student “can no longer stay with me[.] It was temporary until one of my children returned home[.] I no longer have space to keep them.” It appears that this note concerns the circumstances under which petitioner and the student left the in-district residence. While eviction could give rise to a finding of homelessness, the note does not contain sufficient information to permit such a conclusion. Therefore, petitioner has not established that the loss of her current housing is imminent or that the out-of-district residence is temporary or transitional (see Appeal of Students with Disabilities, 55 Ed Dept Rep, Decision No. 16,826).
Based on the record before me, petitioner has failed to demonstrate that she and the student lack a fixed, regular, and adequate nighttime residence.
THE APPEAL IS DISMISSED.
END OF FILE
 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.