Decision No. 18,026
Appeal of K.P., on behalf of her son, from action of the Board of Education of the Massapequa Union Free School District regarding residency and transportation.
Decision No. 18,026
(August 9, 2021)
Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District that her son (“the student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and is, therefore, not entitled to attend the district’s schools. The appeal must be dismissed.
Prior to February 2020, petitioner and the student resided within respondent’s district, where the student attended pre-kindergarten. On February 24, 2020, petitioner submitted a form entitled “Education Program for Homeless Students” and a letter from petitioner’s mother to respondent. In the letter, petitioner’s mother stated that petitioner and her two children currently resided with her, outside of the district, on a temporary basis (“the out-of-district residence”). The district allowed the student to continue to attend its schools as a homeless student.
In February and March of 2021, district staff requested updated information from petitioner regarding the student’s residency and homeless status. Petitioner did not submit any supporting documentation regarding her and the student’s living arrangements. On April 7, 2021, the district informed petitioner that, because it had been unable to determine the student’s continued eligibility as a homeless student, he would be disenrolled following the completion of the 2020-2021 school year. This appeal ensued.
Petitioner contends that she and her two children currently reside “doubled up” in her mother’s home. She states that her living arrangements are temporary and inadequate to support her son’s medical needs. In support of her claim, petitioner submits a letter signed by her mother, stating that all of petitioner’s furniture is in storage; that she is preparing her house for sale in order to buy a more suitable “mother/daughter” home in respondent’s district; and that she has been unable to find a home within her budget. She also submits a letter from a social worker, who states that she is working with the family to secure permanent housing for the student’s complex medical care. The social worker states that, while the student’s residence is safe, it is not fixed, regular or adequate because petitioner and the student share a small bedroom and permission to stay may be revoked at any time. The social worker includes a photograph of the bedroom in question, which depicts an adult sized bed next to a child sized bed. Petitioner seeks a determination that the student is homeless within the meaning of McKinney-Vento and State law and, thus, entitled to attend respondent’s schools and receive transportation.
Respondent contends that petitioner has failed to meet her burden of proving that the student lacks 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, 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
On the record before me, petitioner has failed to establish that the student meets the definition of a homeless child under either State or federal law. Although the record suggests that petitioner shares a room with the student, the photograph submitted with the petition depicts two separate beds in this bedroom. Further, though petitioner contends that four people occupy “two small bedrooms plus an office,” respondent has submitted public tax records which describe the home as a “two family dwelling constructed to accommodate year-round occupancy” and include the notation: “[i]ncludes duplex, single owner.” Respondent has also submitted a letter, dated February 1, 2018, that petitioner’s mother submitted to the district which described the home as having three bedrooms. Petitioner did not submit a reply or otherwise respond to these contentions. Thus, on this record, petitioner has failed to demonstrate that her son lacks a fixed, regular and adequate nighttime residence (see Appeal of D.S. and E.S., 60 Ed Dept Rep, Decision No. 17,892; Appeal of M.G., 60 id., Decision No. 17,871; Appeal of K.G.B., 58 id., Decision No. 17,666).
Moreover, petitioner has not established that her residence is temporary or transitional. Petitioner and the student have lived at the out-of-district residence, which is owned by a family member, since at least February 2020. While petitioner’s mother may be preparing the home for sale, there is no evidence suggesting that there is a fixed time limit as to how long petitioner and the student can continue to reside therein (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864; Appeal of M.S. and C.C., 59 id., Decision No. 17,749).
Although the appeal must be dismissed, petitioner retains the right to reapply for admission on behalf of the student at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
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.