Appeal of M.G., on behalf of his child, from action of the Board of Education of the City School District of the City of White Plains regarding residency and homelessness.

Decision No. 18,340

(August 23, 2023)

Keane & Beane, P.C., attorneys for respondent, Ralph C. Demarco, Esq., of counsel

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

Prior to the events described herein, the student was enrolled in respondent’s schools as a district resident.  In or around November 2022, respondent commenced a residency investigation based upon its suspicion that the student resided at a location outside of the district (the “out-of-district address”) with her grandparents.  Respondent conducted 10 days of surveillance between November and December 2022, and did not observe the student entering or exiting the in-district address.  Instead, the student was consistently observed departing from, or returning to, the out-of-district address in a vehicle registered to her grandfather.  Following notice and an opportunity to submit additional evidence of residency, respondent expressed it would exclude the student from its district as of April 26, 2023.

Following various conversations with the grandparents by letter dated April 28, 2023, respondent reiterated its residency determination and afforded petitioner until May 5, 2023 to enroll the student in the district serving the out-of-district address.  Petitioner thereafter claimed that the student was homeless.  Respondent denied this contention by letter dated May 18, 2023, and this appeal ensued.

Petitioner contends that the student is homeless because she is sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.[1]  Petitioner argues that the student’s mother was facing eviction and temporarily agreed to have the student reside with him outside of the district until the start of the school year in September 2022.  Petitioner requests a determination that the student is eligible to attend respondent’s schools as a homeless student.

Respondent argues that its residency and homelessness determinations were reasonable and seeks dismissal of the petition.

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.”[2]  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]).

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 his burden of proving that the student is homeless under state or federal law.  Petitioner does not allege that he or the student’s mother are homeless, nor does he provide any details about the adequacy of the living conditions at the out-of-district address (see Appeal of A.M., 57 Ed Dept Rep, Decision No. 17,146).  Without such information, I cannot find that the out-of-district address is inadequate (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,165).  While he asserts that the student is sharing the housing of other persons, this does not, without more, establish homelessness (see Appeal of A.W., 62 Ed Dept Rep, Decision No. 18,186; Appeal of M.G., 60 id., Decision No. 17,871; Appeal of A.M., 57 id., Decision No. 17,146).

Additionally, petitioner has failed to prove that the out-of-district address is temporary.  Petitioner asserts on appeal that the mother could have been evicted from the out-of-district address, stating that the

original agreement with mother was to have [the student] on a temporary basis until the start of the school year in Sept 2022.  Mother then stated she had legal issues with landlord regarding her apartment and she was going to court to avoid eviction.

The mere possibility of eviction, however, is insufficient to prove an imminent loss of current housing (see Appeal of S.R., 62 Ed Dept Rep, Decision No. 18,162 [citing prior appeals]).

In any event, it does not appear that the student’s mother was evicted.  Respondent’s assistant superintendent of special education and pupil services avers that the student’s mother admitted in a phone conversation that “the reason [the student] was living with [petitioner and the grandparents] was to accommodate [the mother’s] work schedule and childcare issues, not because of any possible future eviction.”  Additionally, respondent’s surveillance and investigation evidence depicted petitioner and the student at the out-of-district address as of November and December 2022.  Therefore, petitioner has not proven that there is a fixed time limit as to how long the student or his mother may remain at the out-of-district address (see Appeal of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404).

Therefore, based upon the record before me, petitioner has failed to demonstrate that the student lacks a fixed, regular and adequate night-time residence or other accommodations set forth in Education Law § 3209 (1) (a).[3]

THE APPEAL IS DISMISSED.

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