Appeals of L.B. and S.B., on behalf of their children, from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency and homelessness.

Decision No. 18,594

(July 21, 2025)

Webster Szanyi LLP, attorneys for respondent, Melanie J. Beardsley, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal determinations of the Board of Education of the Cleveland Hill Union Free School District (“respondent”) that their two children (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”).  Petitioners filed separate petitions for each child, which I have consolidated for decision (8 NYCRR 275.18).  The appeals must be dismissed.

Prior to the events described herein, the students resided at a location within respondent’s district (the “in-district address”).  According to petitioners, they moved in with a relative outside the district (the “out-of-district address”) in summer 2024.  Later that summer, petitioners informed respondent that they had temporarily relocated to the out-of-district address.  Petitioners provided photographs and a text message, purportedly from their landlord, to support their contention that the in-district address contained mold.  Petitioners indicated that they would return to the in-district address once the mold was abated. 

Respondent’s assistant superintendent investigated these claims by speaking with the property manager for the in-district address.  The property manager informed him that petitioners had moved voluntarily, there was no mold at the property, and that he was preparing the property for a new tenant.  On September 18, 2024, respondent determined that the students were not homeless.  This appeal ensued.

Petitioners argue that the students are temporarily sharing the housing of others due to the presence of mold at the in-district address.  They seek a determination that the students are entitled to attend respondent’s district as homeless students.

Respondent argues that petitioners’ claims of homelessness are unsupported by the record.

Pursuant to Education Law § 3209 (1) (a), a “homeless child” is:  (1) a child “who lacks a fixed, regular, and adequate nighttime address,” 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, the record supports a finding that petitioners voluntarily relocated to the out-of-district address.  The single text message from a contact identified as “Landlord” and photographs of alleged mold are less probative than the statements of the property manager (Appeals of M.W. and A.K.¸ 64 Ed Dept Rep, Decision No. 18,484).  Moreover, while petitioners initially claimed that they would return to the in-district address once the mold was abated, they now assert that they will move once they find a new place to live.  This shifting explanation undermines their credibility in this matter (Appeal of Rahimi, 61 Ed Dept Rep, Decision No. 18,044).

Petitioners have otherwise failed to show that their current address is temporary or transitional.  They do not argue that the out-of-district address is inadequate and there is no evidence to suggest the same.  Sharing the housing of other persons does not, without more, establish that a residence is inadequate (Appeal of N.C., 64 Ed Dept Rep, Decision No. 18,445; Appeal of T.M., 63 id., Decision No. 18,329).  Additionally, there is no evidence that petitioners must leave the out-of-district address by a specific date (Appeal of S.M., 64 Ed Dept Rep, Decision No. 18,461; Appeal of M.S., 63 id., Decision No. 18,320).  Therefore, petitioners have not proven that respondent’s determination was arbitrary and capricious, and the appeals must be dismissed.

THE APPEALS ARE DISMISSED.

END OF FILE