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Decision No. 14,177

Appeal of KIMBERLY WILLIAMS from action of the Board of Education of the Naples Central School District regarding residency.

Decision No. 14,177

(July 28, 1999)

Monroe County Legal Assistance Corp., attorneys for petitioner, Wendy A. Walters, Esq., of counsel

McGowan and Brownell, attorneys for respondent, William McGowan, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Naples Central School District ("respondent") that she is not a resident of the district. The appeal must be dismissed.

Petitioner was residing with her mother, Lila Ober, in the Avon Central School District until November 6, 1995. Petitioner left her mother’s home on November 6, 1995. Sometime thereafter, she began staying at Faith Haven, a maternity group home located in respondent district. Petitioner’s mother did not surrender parental control over petitioner to Faith Haven. Petitioner did not support herself and was not receiving public assistance. On November 20, 1995, petitioner requested admission to respondent district. Initially, petitioner was denied admission but on January 24, 1996, she began attending school in respondent district. I granted an interim order on March 8, 1996 authorizing her to remain at respondent district pending disposition of the appeal. On April 1, 1996, petitioner left Faith Haven in the company of her mother and ceased attending school in respondent district.

The appeal must be dismissed as moot. Petitioner requested that she be allowed to attend respondent district until disposition on the merits of this appeal. I granted a stay allowing her to remain, however, petitioner left respondent district. Since the relief requested was granted by the stay and then negated by petitioner’s voluntary withdrawal from respondent district, there is no issue before the Commissioner. It is well settled that the Commissioner will only decide matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Boehm, 37 Ed Dept Rep 208, Decision No. 13,844; Appeal of Postal, 36 Ed Dept Rep 1, Decision No. 13,632).

Even if the petition were not dismissed as moot, it would be dismissed on the merits. Education Law "3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Boehm, 37 Ed Dept Rep 208, Decision No. 13,844; Appeal of Keenan, 36 Ed Dept Rep 6, Decision No. 13,635). A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Boehm, supra; Appeal of Keenan, supra). However, this presumption may be rebutted (Appeal of McMullan, 29 Ed Dept Rep 310, Decision No. 12,304). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent transfer of custody and control to someone residing within the district (Appeal of Brutcher, 33 Ed Dept Rep 56, Decision No. 12,973).

Petitioner admits that her mother was residing outside respondent district and that she had not relinquished control over petitioner. Accordingly the evidence was insufficient to rebut the presumption that petitioner’s residence was with her mother, outside respondent district.

In light of my determination, there is no need to address the parties’ remaining contentions.