Decision No. 18,154
Appeal of C.C., on behalf of her children, from action of the Board of Education of the Merrick Union Free School District regarding residency and transportation.
Decision No. 18,154
(July 12, 2022)
Ingerman Smith, L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Merrick 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 tuition-free. The appeal must be dismissed.
In fall 2018, petitioner registered the elder student, who was school age, in respondent’s district. She identified the student’s home as her parents’ home (the “in-district residence”). Petitioner explained that she and the students had previously lived outside of respondent’s district (the “out-of-district residence”) but had left this location due to violence perpetrated by the students’ father. Respondent enrolled the elder student in the district for the 2018-2019 school year, and later enrolled the younger student when he became eligible to attend school in the 2020-2021 school year.
On or about March 2021, the students informed respondent that they had returned to the out-of-district residence. Respondent contacted petitioner, who confirmed that she, the students, and the students’ father—with whom she apparently had reconciled—were living at the out-of-district residence. She asserted that the family had moved after her parents had “verbal[ly] abuse[d]” her and the students.
In a letter dated June 9, 2021, respondent informed petitioner that it had reason to believe that she had her family no longer resided within the district. Respondent offered petitioner the opportunity to meet and discuss the basis for its determination. This meeting occurred via telephone on June 24, 2021. During the conversation, petitioner stated that she and the students had left the in-district residence due to “domestic violence” and acknowledged that they had been living at the out-of-district residence for the last four months.
By letter dated July 19, 2021, respondent informed petitioner of its determination that she and the students were not homeless as defined by McKinney-Vento. As such, the students would be excluded from the district effective immediately. The letter was followed by a telephone conversation on July 23 and a second letter dated July 27, 2021 in which respondent reiterated its determination. This appeal ensued.
Petitioner maintains that she and the students are homeless because they are fleeing domestic violence. Petitioner seeks a determination that the students are homeless within the meaning of McKinney-Vento and state law and, thus, entitled to attend respondent’s schools.
Respondent argues that the students are 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 demonstrate that the out-of-district residence is inadequate, temporary, or transitional. Petitioner states that the out-of-district residence includes a “kitchen, living room, a dining room, two bedrooms, and 1 bathroom, within approximately 800-1000 square feet.” The photographs submitted by petitioner generally depict the adequacy of these living spaces. While petitioner states that a “second bedroom is used by [the] landlord for storage,” she has not proven that this is a condition of her rental arrangement or otherwise compelled by the layout of the house (see Appeal of K.G.B., 58 Ed Dept Rep, Decision No. 17,666). In this respect, petitioner does not offer any explanation of the students’ sleeping arrangements. Thus, she has failed to establish that the out-of-district residence is inadequate.
In addition, petitioner does not claim that she and the students need to vacate the out-of-district residence or that there is a fixed time limit as to how long they may remain. As such, I cannot find that the out-of-district residence is temporary (see Appeal of G.J., 61 Ed Dept Rep, Decision No. 18,034; Appeal of Appeal of S.R., 58 id. Decision No. 17,663; Appeal of T.M., 57 id. Decision No. 17,165).
Finally, petitioner contends that the out-of-district residence is inadequate and/or temporary because she and the students moved there to avoid domestic violence, which she characterizes as her parents’ “verbal abuse.” In support thereof, she submits a letter from a non-profit organization indicating that she and the students “entered [a] safe home on January 17, 2021 and exited on January 25, 2021.” While such circumstances could give rise to a claim of homelessness, the record reflects that the students have continuously resided at the out-of-district residence since February 2021. Respondent has submitted additional evidence—which I have accepted pursuant to 8 NYCRR 276.5—suggesting that, as of June 2022, petitioner and the students continue to reside at the out-of-district residence. Thus, even if petitioner and the students were homeless in or around February 2021, they have resided at the out-of-district residence for a year and four months. Petitioner has offered no evidence that she and the students are attempting to return to respondent’s district. As such, she has failed to demonstrate that she and the students lack a fixed, regular and adequate nighttime residence.
THE APPEAL IS DISMISSED.
END OF FILE
 After the telephone conference, respondent requested documentation to support petitioner’s claim of homelessness. On July 13, 2021, respondent received a package from petitioner that consisted of information that was not relevant to petitioner’s claimed homelessness, such as “[documentation of] family court proceedings, attorney invoices, [and] notices of overdue child support ….”
 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.
 As stated in numerous decisions of the Commissioner, petitioner’s mere assertion that the students are sharing the housing of other persons does not, without more, establish that the residence is inadequate (Appeal of K.S., 60 Ed Dept Rep, Decision No. 17,875; Appeal of C.M., 58 id., Decision No. 17,664; Appeal of A.M., 57 id., Decision No. 17,146).