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Decision No. 14,742

Appeal of OLLIE BAZEMORE, on behalf of ANTOINE DOMINIQUE LEAZER, from action of the Board of Education of the Freeport Union Free School District regarding residency.


Decision No. 14,742

(June 19, 2002)

Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District ("respondent") that Antoine, the son of petitioner's former foster child, is not a district resident. The appeal must be dismissed.

Petitioner, who resides in respondent's district, was the foster parent of Kecia Ruffin. Ms. Ruffin initially registered her son Antoine in respondent's district in September 1994, indicating that they resided at petitioner's address. On August 6, 2001, Ms. Ruffin advised district officials that she and Antoine had moved to the Hempstead Union Free School District, and Antoine was withdrawn from enrollment as a student in respondent"s district. However, on August 30, 2001, Ms. Ruffin re-enrolled her son at J.W. Dodd Junior High School, stating that she and Antoine were again residing at petitioner's address.

In October 2001, respondent received further information that Ms. Ruffin and Antoine were residing at an address in Hempstead, and initiated surveillance. By letter dated October 23, 2001, respondent's registry office advised Ms. Ruffin of its determination that Antoine was not eligible to attend respondent"s schools, and that she could appeal to the superintendent. At a residency hearing conducted on November 19, 2001, Ms. Ruffin admitted that Antoine usually stayed with her in Hempstead, but indicated that he sometimes stayed with petitioner in Freeport. At the close of the hearing, petitioner asserted that she would adopt Antoine so he could attend respondent's schools.

In a determination letter dated November 20, 2001, the superintendent advised petitioner that Antoine was not a district resident and that his last day of attendance would be November 30, 2001. This appeal ensued. Petitioner's request for interim relief was denied on December 12, 2001; however, Antoine continued at respondent"s middle school due to an administrative error.

Petitioner asserts that Antoine resides with her, that she and her husband provide him with food and shelter, and that they make all decisions for him. Respondent asserts that petitioner has submitted no evidence to establish her custody or guardianship of Antoine, and that Antoine, in fact, resides with his mother in the Hempstead Union Free School District.

As a procedural matter, I note that by letter dated April 26, 2002, respondent requested permission to submit a supplemental affidavit and exhibits pursuant to "276.5 of the Commissioner"s regulations. This material relates to a Nassau County Family Court proceeding brought by petitioner to obtain Letters of Guardianship over Antoine and an agreement between the parties regarding Antoine's attendance in respondent's schools. Since the events described in the supplemental materials occurred after submission of respondent's answer and are directly related to the issue in this appeal, I have accepted them pursuant to "276.5.

The above-referenced agreement between the parties states that respondent will allow Antoine to finish the 2001-2002 school year at its J.W. Dodd Middle School, and that petitioner and Ms. Ruffin will not enroll Antoine in respondent's schools from petitioner's address for the 2002-2003 and 2003-2004 school years. The agreement does not preclude Ms. Ruffin from registering Antoine in respondent's schools if she establishes a domicile for herself and Antoine within respondent's district.

The appeal must be dismissed. The Commissioner of Education only decides 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 a Tobias, 40 Ed Dept Rep ___, Decision No. 14,612; Appeal of Correale, 40 id. 15, Decision No. 14,405). Since petitioner and respondent have voluntarily agreed upon a resolution of this matter, the instant appeal has been rendered moot.