Decision No. 18,320
Appeal of M.S., on behalf of her grandchildren, from action of the Board of Education of the Uniondale Union Free School District regarding residency and homelessness.
Decision No. 18,320
(August 7, 2023)
Guercio & Guercio LLP, attorneys for respondent, Lisa L. Hutchinson, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals a determination by the Board of Education of the Uniondale Union Free School District (“respondent”) that her grandchildren (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §§ 11431 et seq., “McKinney-Vento”). The appeal must be dismissed.
The students were enrolled as homeless students in respondent’s school district on September 7, 2017 and August 14, 2018, respectively. In September 2018, petitioner and her grandchildren moved to the out-of-district residence.
In a letter dated August 24, 2022, respondent’s superintendent informed petitioner of her determination that the students were no longer entitled to attend respondent’s school as homeless students pursuant to McKinney-Vento because they had “permanent housing” at the out-of-district residence. This appeal ensued.
Petitioner argues that the students are homeless because the landlord informed petitioner that she is “either going to sell or not know if she will renew [the] lease” for the out-of-district residence by “February 2023.” For relief, petitioner seeks a determination that the students are entitled to attend respondent’s schools as homeless students.
Respondent argues that petitioner has failed to prove that the out-of-district address is inadequate. Respondent further contends that petitioner has been living at the out-of-district address since 2018 and that she has previously reported “similar threats by the landlord ... that [did not] result  in ... eviction.”
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).
On the record before me, petitioner has failed to establish that the students lack a fixed, regular, and adequate nighttime residence. Petitioner suggests that she and the students lack an adequate nighttime residence because they share their housing with five additional people. However, petitioner offers no further explanation of the nature or characteristics of the out-of-district residence, such as its number of bedrooms. Therefore, petitioner has not met her burden of proving that the out-of-district residence, where she and the students began living in or about September 2018, is not fixed, regular, and adequate (see Appeal of T.B.-D., 58 Ed Dept Rep, Decision No. 17,605; Appeal of C.M., 57 id., Decision No. 17,312; Appeal of M.W., 46 id. 151, Decision No. 15,471).
Moreover, petitioner has not established that the out-of-district residence is temporary or transitional. Petitioner asserts that the out-of-district residence is temporary since her landlord will not commit to renewing her lease and may sell the residence. While this creates a question as to the permanency of the out-of-district address, it does not prove that she received a “specific date as to when the premises must be vacated” (Appeal of A.W., 62 Ed Dept Rep, Decision No. 18,186; Appeal of J.C., 60 id., Decision No. 17,897; Appeal of S.D., 53 id., Decision No. 16,608). In this respect, respondent’s homeless liaison indicates that petitioner previously relayed similar predictions from the landlord that did not result in eviction. As such, I cannot find that the out-of-district residence is temporary or transitional.
Finally, petitioner argues that the student’s exclusion from respondent’s schools would “hurt” the students academically as they do not do well with change and one of the students is eligible for special education. Although I am sympathetic to petitioner’s concerns, my review in this appeal is limited to the question of whether the students have a fixed, regular and adequate nighttime residence.
Thus, based on the record before me, petitioner has failed to demonstrate that she and the students lack a fixed, regular and adequate nighttime residence or that their residence is temporary or transitional within the meaning of McKinney-Vento. Accordingly, I cannot find respondent’s determination that the students are not homeless to be arbitrary or capricious.
I have considered petitioner’s remaining arguments and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 Respondent does not dispute that petitioner has legal custody of the students.
 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.
 The students’ district of residence is responsible for providing a free and appropriate public education (see E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., US Dist Ct, SD NY, 11 Civ 5510, Ramos, J., 2012).