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Decision No. 16,065

Appeal of N.E., on behalf of her daughter A.E., from action of the Board of Education of the Ballston Spa Central School District regarding transportation.

Decision No. 16,065

(May 27, 2010)

Girvin & Ferlazzo, P.C., attorneys for respondent, Tara L. Moffett, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Ballston Spa Central School District (“respondent”) that A.E. is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”) and, therefore, is not entitled to receive transportation.  The appeal must be dismissed.

The record indicates that, in or about September 2006, petitioner and A.E.’s father, E.M., resided within respondent’s district and A.E. attended respondent’s schools.  Pursuant to a September 6, 2006 modified permanent order of custody and visitation from the Saratoga County Family Court, petitioner and E.M. shared joint legal custody of A.E.  The order established a schedule for alternating weekly parenting time, alternating weekly visitation and alternating weekend visitation.  The order also stipulated that A.E. was to continue to attend school in respondent’s district and that, if either parent relocated outside respondent’s district, such parent would be responsible for transporting A.E. to and from school during their parenting time.

According to an affidavit from respondent’s director of pupil services (“director”), on or about November 6, 2009, petitioner informed the director that she no longer resided within the district and requested that “A.E. be treated as homeless to receive transportation” to and from petitioner’s sister’s home in Shushan, New York.  By letter dated November 6, 2009, the director informed petitioner that, pursuant to the 2006 court order, petitioner was responsible for transporting A.E. to its schools.

This appeal ensued.  Petitioner’s request for interim relief was denied on January 6, 2010.

Petitioner contends that she was evicted from her home within respondent’s district “due to economic hardship” and is temporarily residing with her sister in Shushan.  Petitioner maintains that A.E. is therefore homeless within the meaning of McKinney-Vento and entitled to transportation to and from Shushan on the days she resides with petitioner.[1]  Petitioner seeks “entitlement [to] gas cards and/or transportation.”

Respondent argues that petitioner has not established that A.E. is homeless within the meaning of McKinney-Vento and states that A.E. “continues to be eligible to attend the District’s schools on a tuition free basis based on her father’s residency during the pendency of this Appeal.”

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Together with its verified answer, respondent included an affidavit from E.M. in which he explained that he has petitioned the Family Court for full custody of A.E.  In response to a request from my Office of Counsel, respondent submitted a January 28, 2010 order from the court granting E.M. temporary legal and physical custody of A.E.  The court also ordered that petitioner’s visitation with A.E. be temporarily suspended.  Based on the court order, A.E. now resides with her father at his in-district residence.  As a result, the appeal must be dismissed as moot.

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1] In his affidavit, the director states:  “Since November 2009, according to the office sign-in sheet, A.E. is picked up from school by her mother or brother 2-3 days per week and bused to her father’s house the remaining days of the week.  This pattern alternates consistent with the custody schedule.”