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Decision No. 14,609

Appeal of NONNA COX, on behalf of OLUKAYODE OLAIYA, from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 14,609

(July 20, 2001)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle Auslander, Esq., of counsel

MILLS, Commissioner.---Petitioner appeals the determination of the Board of Education of the Pine Bush Central School District ("respondent") that her brother, Olukayode Olaiya ("Olu"), is not a district resident. The appeal must be dismissed.

Petitioner, a district resident, attempted to register her brother as a student in respondent's district on August 14, 2000. Richard Reich, respondent's designated residency officer, held a residency hearing on August 15. Also on August 15, petitioner and her mother (also named Nonna Cox) submitted affidavits to the district. Mrs. Cox, who resides in New York City, stated that although petitioner would act as guardian and have daily supervision of Olu, she wished to retain her parental rights regarding major academic decisions. Mrs. Cox also stated that she intended to make financial contributions towards Olu's care, claim him as a tax deduction, provide him with coverage under her medical insurance plan, and share decisions regarding Olu's health, education and welfare with petitioner. Petitioner's affidavit stated that Mrs. Cox would provide all necessary support for Olu, and that Olu intended to live with petitioner until he completes high school but would visit his mother whenever he wished.

Based on the information presented at the hearing and in the two affidavits, Mr. Reich informed petitioner and Mrs. Cox that Olu was not entitled to attend the district's schools because custody and control of Olu had not been transferred from Mrs. Cox to petitioner. On August 16, Mrs. Cox met with and submitted an additional letter to Mr. Reich. In that letter, Mrs. Cox declared that she was transferring total guardianship of Olu to petitioner "to help secure a positive future for [Olu]" which he would not otherwise have in Harlem. Petitioner also agreed to assume sole guardianship. Mr. Reich subsequently issued a written determination, dated August 16, indicating that even after considering petitioner's and Mrs. Cox's revised statements following the hearing, Olu was still not a district resident because he was living with petitioner to take advantage of the district schools.

On August 18, 2000, petitioner petitioned Orange County Family Court for temporary custody of Olu in order to enroll him in school. The Family Court granted temporary custody and scheduled a hearing for September 29. Also on August 18, Mrs. Cox apparently wrote to Mr. Reich submitting the court order and additional information, although that letter is not in the record. On September 5, 2000, Mrs. Cox again wrote to Mr. Reich to provide, in her words, information that she was too embarrassed to offer previously. Mrs. Cox stated that her youngest son's father, with whom she lived, was abusive to Olu, and that is why Olu was brought to live with petitioner.

On September 8 and September 12, 2000, Mr. Reich again determined, in writing, that Olu was not entitled to attend school in the district. The September 8th letter noted that the new information submitted by Mrs. Cox was inconsistent with prior statements made in her August 15 affidavit. The September 12th letter noted that Mrs. Cox had not transferred actual care, custody and control of Olu to a district resident.

Petitioner attempted to commence an appeal to the Commissioner on September 15, 2000. However, my Office of Counsel rejected the petition for procedural defects. On September 29, 2000, the Family Court awarded custody of Olu to petitioner. By letter dated October 3, 2000, Mr. Reich again determined that Olu could not attend the district's schools, stating that the court order "is not considered sufficient evidence to determine that [Olu] is a resident in the district." On October 3, 2000, petitioner submitted a corrected petition and instituted this appeal. I granted petitioner's request for interim relief on October 6. Olu turned 18 years old on October 31, 2000.

Petitioner seeks a determination that Olu is a district resident entitled to attend the respondent's schools tuition-free. Respondent asserts that Olu is not entitled to attend school in the district because his mother resides outside the district, he is presumed to reside with his mother and she has not transferred full custody and control to a district resident. Respondent also asserts that if transfer of custody and control is at issue, then Mrs. Cox should have been joined as a necessary party. Alternatively, respondent argues that since Olu has now turned 18, he should have been joined as a necessary party to this appeal and petitioner lacks standing to appeal on his behalf. Finally, respondent contends that Mr. Reich's determination was not arbitrary or capricious.

The appeal must be dismissed as moot. It is well settled that the Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of De La Torre, 39 Ed Dept Rep 844, Decision No. 14,397; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990). In response to an inquiry from my Counsel's office, Dr. Patrick Michel, Principal of Pine Bush High School, avers that Olu withdrew from the high school in March 2001. As Olu is no longer enrolled in school, and apparently has no desire to continue attending school in respondent's district at this point in time, the issue of his residency is moot (Appeal of Correale, 40 Ed Dept Rep ___, Decision No. 14,405).