Appeal of T.F., on behalf of her child, from action of the Board of Education of the Watervliet City School District regarding residency and homelessness.

 

Decision No. 18,427

(July 1, 2024)

Girvin & Ferlazzo, PC, attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

Petitioner appeals the determination of the Board of Education of the Watervliet City 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”).  The appeal must be dismissed.

Prior to the events described herein, the student resided within respondent’s district.  In January 2023, petitioner informed respondent that she and the student were living at petitioner’s mother’s home located outside of the district (the “out-of-district residence”). 

By letter dated January 24, 2023, respondent’s superintendent determined that the student was no longer entitled to attend its schools as a district resident.  The superintendent indicated that petitioner must enroll the student in her new district of residence, the City School District for the City of Albany (“Albany City Schools”).

On February 6, 2023, respondent’s homeless liaison received an email from Albany City Schools asserting that petitioner had been evicted from her in-district residence and was “doubled up” at the out-of-district residence.  Respondent maintained the student’s enrollment and provided transportation for the remainder of the 2022-2023 school year.

On September 7, 2023, respondent’s homeless liaison spoke with petitioner via telephone.  Petitioner asserted that she and the student continued to be homeless.  Petitioner indicated that the out-of-district residence was a three-bedroom apartment, that her mother and another of her children resided therein, and that each occupant had his or her own bed.

By letter dated September 18, 2023, the superintendent determined that petitioner and the student were no longer homeless.  This appeal ensued.

Petitioner claims that the student is homeless within the meaning of McKinney-Vento because she and the student are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.  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 contends that petitioner has failed to meet her burden of proving that the out-of-district residence is not fixed, regular, or adequate.

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.”[1]  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]). 

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 under State or federal law.  The record reflects that petitioner and the student reside at the out-of-district residence with petitioner’s other child and mother in a three-bedroom apartment where each occupant has his or her own bed.  These assertions suggest that the out-of-district residence is adequate (see Appeal of J.S., 62 Ed Dept Rep, Decision No. 18,166).  While petitioner indicates on appeal that an aunt and stepfather also reside at the out-of-district residence, this statement alone does not prove that the residence is inadequate due to overcrowding (Appeal of M.G., 60 Ed Dept Rep, Decision No. 17,871).[2]

Petitioner has also failed to establish that the out-of-district residence is temporary or transitional.  The record reflects that the student has resided at the out-of-district residence with petitioner since at least October 2022.  There is no indication that petitioner and the student need to vacate the out-of-district residence or that there is a fixed time as to how long they may remain (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864, Appeal of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).

Therefore, petitioner has failed to meet her burden of proving that the student lacks a fixed, regular and adequate nighttime residence.  Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

To the extent they are not addressed herein, petitioner’s remaining contentions are without merit.

THE APPEAL IS DISMISSED.

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