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Decision No. 15,071

Appeal of NILESH PATEL, on behalf of PARTH and AMIKA PATEL, from action of the Board of Education of the Pittsford Central School District regarding residency.



(June 28, 2004)


Pheterson, Stern, Calabrese & Neilans, LLP, attorneys for petitioner, Steven J. Pheterson, Esq., of counsel


Harris Beach LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pittsford Central School District ("respondent") that his nephew and niece, Parth and Amika,  are not district residents.  The appeal must be dismissed.

Petitioner resides within respondent"s district.  It is undisputed that Parth and Amika"s parents reside in a neighboring district, the Rush-Henrietta Central School District.  During July 2002, their parents separated, and the children and their mother moved temporarily into petitioner"s residence.  In September 2002, Parth"s and Amika"s mother enrolled her children in respondent"s schools using petitioner"s address.  At that time, Amika was four and did not attend school. 

In January 2003, the children and their mother began spending a substantial amount of time at their original residence, outside the district, to care for the children"s ill father.  Parth and Amika"s parents eventually reconciled but decided they were unable to care for the children.  On January 1, 2003, a "Child Care Authorization" form was signed by the parents that expressed an intent to transfer authority to petitioner and his wife "to take temporary care" of Parth and Amika until revoked.  The authority included decision making for medical treatment, clothing, food and shelter, absences from school, transportation from school, and participation in sports and field trips.

In May 2003, respondent"s director of pupil services arranged for surveillance to determine the children"s residence.  On May 5, 7 and 8, 2003, the district"s investigator observed Parth board or exit a school bus at petitioner"s residence.

On the morning of May 9, 2003, the investigator saw  Parth board a school bus at petitioner"s residence after a green van, registered to his parents, pulled into petitioner"s driveway.  On May 10, 2003, the investigator did not observe any activity at the parents" residence.   On the morning of May 12, 2003, the investigator observed the green van pull into petitioner"s driveway and return to the parents" residence after Parth boarded the school bus.  That afternoon, the investigator watched Parth disembark the school bus and enter petitioner"s residence.  Around 5:00 p.m., the investigator saw Parth leave in the green van to return to his parents" home outside the district.

On May 13, 14, 15 and 16, 2003, the investigator observed Parth"s mother drive him to petitioner"s residence in the morning, where he boarded the school bus.  An additional five days of surveillance was conducted between June 2 and June 6, 2003.  On four of five mornings, Parth was observed riding in the green van to petitioner"s residence where he boarded the school bus.  In the afternoon, Parth was seen being picked up by his mother and driven back to his parents" residence outside respondent"s district.

By letter dated June 11, 2003, the director of pupil services informed the children"s mother that Parth and Amika would no longer be allowed to attend school in respondent"s district after June 20, 2003 because surveillance showed they resided outside the district.  On June 24, 2003, petitioner and the children"s parents signed an agreement purporting to name petitioner guardian of the children and designating their residence as with him.  On June 26, 2003, petitioner"s counsel sent this agreement and an affidavit by the children"s mother to the director of pupil services.  This appeal ensued.  Petitioner"s request for interim relief was denied on August 8, 2003.

Petitioner contends that respondent failed to hold a hearing or reconsider its decision upon receipt of the information submitted on June 26, 2003.  Petitioner alleges that except for some weekends and vacation times, Parth and Amika reside with him in his five-bedroom home.  Petitioner alleges that this living arrangement will continue indefinitely because his mother also lives with him and, traditionally, in an Indian family, the children"s grandparents take care of them.

In his reply, petitioner alleges that the surveillance report was inaccurate and should be disregarded, specifically because entries for June 4 thru 6, 2003 contain misstatements.  Petitioner also contends that the purported transfer of custody and control of Parth and Amika is permanent.  In addition, petitioner contends that he is solely financially responsible for Parth and Amika"s living and health expenses.

Respondent admits that it did not conduct a residency hearing but contends that its surveillance was conclusive.  Respondent also admits that petitioner"s attorney provided documents regarding petitioner"s alleged guardianship arrangement in response to the June 11, 2003 letter from the director of pupil services, but contends that these documents are not proof of residency as a matter of law and did not require respondent to reconsider its decision.  Respondent contends that petitioner lacks standing to appeal because he is not Parth"s natural parent and the guardianship agreement with his parents is not legally binding.  Respondent also requests that I disregard petitioner"s reply.

To the extent petitioner seeks to have Parth and Amika admitted to respondent"s schools for the 2003-2004 school year, the appeal must be dismissed as moot.  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 Schrader, 42 Ed Dept Rep 47, Decision No. 14,771; Appeal of Tobias, 41 id. 51, Decision No. 14,612).  As a result of the denial of petitioner"s stay request, the children never enrolled in respondent"s schools.  Since the school year has ended, no meaningful relief can be granted.

While the appeal must be dismissed, I note that  petitioner may reapply to the district for admission on the children"s behalf at any time and may present for respondent"s consideration any new information bearing on the question of residence.  In the event he does so, I remind respondent of its obligation pursuant to "100.2(y) of the Commissioner"s regulations to provide him with an opportunity to submit information prior to making its determination of whether the children are entitled to attend the schools of the district.

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