Appeal of J.F., on behalf of her child, from action of the Board of Education of the Tuckahoe Common School District regarding residency and homelessness.

Decision No. 18,434

(July 1, 2024)

Ingerman Smith, L.L.P., attorneys for respondent, Keith T. Olsen, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Tuckahoe Common 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.

The student first enrolled in respondent’s district in 2022.  In April 2023, petitioner submitted a change of address form indicating that she and the student were temporarily residing at a location outside the district (the “first out-of-district address”).  Respondent permitted the student to continue attending school as a homeless student. 

In January 2024, petitioner submitted a second change of address form indicating that she and the student were temporarily living at another address outside the district (the “second out-of-district address”). 

Respondent investigated petitioner’s living circumstances in January and February 2024.  Petitioner or her vehicle were observed at the first in-district address on several occasions.  By contrast, petitioner or the student were never seen at the second in-district address.  As a result, by letter dated February 7, 2024, respondent notified petitioner of its determination that the student was not homeless.  This appeal ensued.

Petitioner contends that she and the student are homeless because they reside at “various family members[’] home[s] where [petitioner] used to reside ....”  She asserts that the first out-of-district address is inadequate “due to overcrowding ....”  She identifies nine family members with whom she allegedly lives.  Petitioner cites the loss of her job and lack of affordable housing as reasons that she has been unable to find an adequate residence.

Respondent contends that its decision should be upheld because the student does not meet the definition of a homeless student under McKinney-Vento or state law. 

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]). 

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).

Initially, petitioner has abandoned her argument that she resides at the second out-of-district address.  While she asserts that she resides at “various family members[’] home[s],” she only identifies, and describes the characteristics of, the first out-of-district address.  Therefore, this decision will only consider the adequacy and permanency of the first out-of-district address.[2]

Petitioner has not met her burden of proving that the first out-of-district address is inadequate due to overcrowding.  Petitioner submits no evidence aside from her bare assertion that she and the student share housing with several other adults and that such circumstance has rendered their housing inadequate (Appeal of B.N. and J.N., 58 Ed Dept Rep, Decision No. 17,448; Appeals of V.C.B., 56 id., Decision No. 17,038).  By contrast, respondent observed petitioner’s vehicle parked outside of the first out-of-district address on 16 different dates and asserts that the out-of-district address never appeared overcrowded, with a maximum of two vehicles present.  According to the district’s research, one vehicle belongs to petitioner and the other belongs to her father.  Thus, the record supports respondent’s determination that the first out-of-district address is not overcrowded (Appeal of S.P., 57 Ed Dept Rep, Decision No. 17,125).  While I am sympathetic to petitioner’s argument that she has been unable to find affordable housing after losing her job, personal or economic hardship alone does not establish homelessness (Appeal of R.L., 62 Ed Dept Rep, Decision No. 18,159; Appeal of S.L., 56 id., Decision No. 17,104).

Further, there is no evidence that petitioner’s residence is temporary or transitional.  Respondent reasonably determined that petitioner and the student reside at the out-of-district address based on its surveillance evidence.  Petitioner does not assert, and the record contains no evidence indicating, that petitioner or the students need to vacate the first out-of-district residence or that there is a fixed time limit as to how long they may remain (see Appeal of G.D. and K.D., 62 Ed Dept Rep, Decision No. 18,180; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).

Finally, petitioner has not proven that she resides at “various family members[’] home[s]” as she does not identify any other locations or descriptions thereof.  Therefore, petitioner has failed to demonstrate that the student is homeless and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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