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Decision No. 18,606

Appeal of A.A.T., on behalf of her child, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency and homelessness.

Decision No. 18,606

(July 21, 2025)

Volz & Vigliotta, PLLC, attorneys for respondent, Sarah A. Gyimah, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that her child (the “student”) is not eligible to attend the district’s schools tuition-free or to receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC § 11431, et seq., “McKinney-Vento”).  The appeal must be dismissed.

According to the record, the student attended respondent’s schools for several years prior to the events described herein.  Respondent first investigated the student’s residency during the 2022-2023 school year.  During the course of surveillance, an investigator “observed [no] activity involving the family at their purported in-[d]istrict address.”  The investigator determined that the student lived outside of the district at a residence in Jamaica, New York (the “out-of-district address”).  Respondent did not exclude the student from its district at that time.

At the beginning of the 2024-2025 school year, petitioner admitted to respondent that she and the student lived at the out-of-district residence.  She asserted that they were homeless as they had been forced out of the in-district address due to foreclosure and were currently “doubled up” at the out-of-district address.  Following an investigation, including a home visit, respondent determined that the student was not homeless.  Respondent memorialized this determination in letters dated November 21, 2024, and December 2, 2024.[1]  This appeal ensued.

Petitioner claims that she was rendered homeless when she and the student had to leave the in-district address due to an impending foreclosure.  She contends that the out-of-district address is inadequate due to overcrowding and seeks a determination that the student is homeless.

Respondent argues that the petition must be dismissed for improper service.  On the merits, respondent contends that petitioner has failed to prove that the student’s residence is inadequate or temporary. 

First, I must address a procedural issue.  While section 275.8 (a) of the Commissioner’s regulations generally requires that a petition be personally served upon each named respondent, subsection (e) directs homeless liaisons to accept service of a petition alleging homelessness or mail it to an individual so authorized (8 NYCRR 275.8 [e]).  Respondent’s homeless liaison admits that she accepted a copy of the petition from a process server on December 18, 2024.  As such, petitioner’s delivery of the petition to the homeless liaison constitutes valid service thereof (see generally Appeal of B.P., 61 Ed Dept Rep, Decision No. 18,027).[2]

Turning to the merits, 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.”[3]  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).

Petitioner has failed to meet her burden of proving that the student is homeless.  The record reflects that the out-of-district address has four bedrooms and 2.5 bathrooms.[4]  While petitioner indicates that she and the student sleep on couches in the living room, she has not proven that this arrangement is compelled by the characteristics of the house or its number of inhabitants (Appeal of D.T., 58 Ed Dept Rep, Decision No. 17,558; Appeal of C.M., 57 id., Decision No. 17,131).  In this respect, petitioner indicates that she and the student reside with the student’s “stepfather”[5] as well as petitioner’s mother, sister, and nephew.  Even if petitioner’s mother, sister, and nephew each occupy a bedroom, petitioner has not explained why she, the student, and the student’s stepfather could not reside in the fourth bedroom.  As such, there is insufficient information in the record to deem the out-of-district address inadequate (Appeal of C.C., 62 Ed Dept Rep, Decision No. 18,154; Appeal of K.P., 61 id., Decision No. 18,026; Appeal of K.G.B., 58 id., Decision No. 17,666). 

Additionally, there is no indication that the out-of-district residence is temporary or transitional.  The record reflects, as supported by respondent’s surveillance, that petitioner and the student have resided at the out-of-district residence since 2023.  It is owned by petitioner’s mother, and the record contains no evidence that petitioner or the student need to vacate or that there is a fixed time limit as to how long petitioner or the student may remain (see Appeal of S.R., 56 Ed Dept Rep, Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).  Therefore, petitioner has failed to demonstrate that the student lacks a fixed, regular, and adequate nighttime residence.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Following the November 2024 letter, petitioner indicated that she “plan[ned] to present documentation … to support her claim” of homelessness.  Petitioner did not submit any such evidence.

 

[2] Alternatively, if the homeless liaison did not accept service of the petition, it was her responsibility to serve it on an appropriate employee or officer (8 NYCRR 275.8 [e]; see also 8 NYCRR 100.2 [x] [7] [iii] [c] [4]; Appeal of T.R., 59 Ed Dept Rep, Decision No. 17,794).

 

[3] 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.

 

[4] Petitioner indicates in the petition that there are three bedrooms.  The district employee who visited, however, reported that there were four.  Because petitioner did not respond to this assertion in her reply, I have relied upon respondent’s evidence on this point.

 

[5] Respondent identifies this individual as petitioner’s “brother.”  However, petitioner refers to him as the student’s stepfather in response to question 7 of the sample petition and as one of the student’s parents/legal guardians in response to question 13.