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Decision No. 16,520


 Appeal of RICHARD L’HOMMEDIEU, on behalf of his daughter VICTORIA, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,520

(August 26, 2013)

Ingerman Smith, LLP, attorneys for respondent, Noah Walker, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that his daughter, Victoria, is not a district resident. The appeal must be dismissed.

The record reflects that Victoria was registered to attend respondent’s schools by her mother who alleged that they both resided with Victoria’s maternal grandmother in Baldwin, New York, within the district.

On or about June 21, 2012, respondent initiated an investigation of Victoria’s residency based upon information that Victoria was residing with her mother outside the district in Freeport. On September 4, 5 and 7,2012, the district surveilled the Baldwin address in the early morning hours and did not see Victoria leaving for school. The district conducted surveillance at the Freeport address on eight occasions during the early morning hours between September 4 and 28, 2012. On seven of the eight mornings, Victoria was observed exiting the Freeport address with her mother.

By letter dated September 14, 2012, respondent’s director of pupil services (“director”) notified Victoria’s mother of her determination that Victoria was not a district resident and therefore would be excluded from school effective September 28, 2012. The director also notified Victoria’s mother of her right to present additional evidence of Victoria’s residence.

On September 20, 2012, Victoria’s mother and step­father met with school officials and alleged that Victoria was residing with petitioner and her paternal grandmother within the district.

On or about September 24, 2012, petitioner attempted to register Victoria for school using her paternal grandmother’s in-district address. By letter dated September 25, 2012, the director notified petitioner that Victoria was not eligible to receive educational services from the district and would be excluded from school effective October 3, 2012. This appeal ensued. Petitioner’s request for interim relief was granted on October 5, 2012.

There is no dispute that petitioner resides within respondent’s district, and that Victoria’s mother resides outside respondent’s district in Freeport. Petitioner alleges that he and Victoria’s mother have joint custody of Victoria and that Victoria resides with him within the district. Petitioner maintains that in early September 2012, Victoria stayed with her mother because he was sick.

Respondent contends that petitioner fails to state a claim upon which relief may be granted and that Victoria resides with her mother outside of the district.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

Together with its verified answer, respondent has submitted copies of requests it received in October 2012 from the Freeport Union Free School District for the transfer of Victoria’s education records. The request indicates that, subsequent to my October 5, 2012 interim order permitting Victoria to continue attending school in respondent’s district pending a decision on the merits of this appeal, Victoria was enrolled in the schools of Freeport Union Free School District for the 2012 – 2013 school year. Consequently, this appeal is moot.

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

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of Victoria at any time should circumstances change, and to present any new information or documentation for respondent’s consideration (see e.g., Appeal of Bowser, 52 Ed Dept Rep, Decision No. 16,432).