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Decision No. 17,072

Appeal of A.L., on behalf of her children T.L. and R.L., from action of the Board of Education of the Middleburgh Central School District regarding residency and transportation.

Decision No. 17,072

(April 10, 2017)

Cheryl Parsons Reul, Esq., attorney for petitioner

Girvin & Ferlazzo, P.C., attorney for respondent, Erin R. Morris, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Middleburgh Central School District (“respondent”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Petitioner’s children attended school in respondent’s district during the 2015-2016 school year.

In November 2015, respondent learned that, due to marital issues, petitioner had moved with her children to a house outside the district owned by the children’s grandfather.  The record indicates that petitioner claimed to respondent’s homeless liaison (“liaison”) that she was homeless and intended to stay with her father, the children’s grandfather, until her court date in January 2016.  The liaison avers that, at that time, petitioner did not indicate to the liaison that her father would ask her family to leave his home.

On January 26, 2016, the liaison contacted petitioner to check on her homeless status.  The liaison avers that petitioner indicated that she did not feel safe returning to the marital residence, or another residence in Middleburgh, and her plan was to continue to reside with her father.

At this time, petitioner was informed by the liaison that she was no longer considered homeless, but that her children would be permitted to continue to attend respondent’s schools but would likely no longer qualify for transportation.  Petitioner was provided with the documentation needed to appeal this determination by the liaison with the understanding that they would meet to discuss whether petitioner wanted to file an appeal.

The liaison avers that, in late February 2016, she requested that the school psychologist contact petitioner to schedule a meeting to discuss her children’s transportation to a school in the South Colonie Central School District and that petitioner refused to attend such a meeting without her lawyer present.

Following some confusion over who was responsible for providing transportation to petitioner’s children, and if they were even entitled to transportation, the district resumed transportation on March 21, 2016. 

On March 21, 2016, the liaison shared the substance of her conversations with petitioner and the results of her investigation into petitioner’s homeless status with the superintendent.

By letter dated March 22, 2016, the superintendent notified petitioner that the residence with her father, a four-bedroom home, was considered adequate and not temporary or transitional, and that her children were no longer considered homeless, and would no longer be permitted to attend district schools free of tuition effective April 21, 2016.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 5, 2016.

Petitioner alleges that she and her children are homeless and that they are sharing the housing of her father due to marital discord and that this housing is inadequate.  Petitioner maintains that her father asked her to leave his home no later than the end of the 2015-2016 school year.

Respondent argues that petitioner fails to state a claim upon which relief may be granted.  Respondent maintains that petitioner’s living arrangement is fixed, regular and adequate and not temporary or transitional, and therefore, she and her children are not homeless within the meaning of McKinney-Vento.

Petitioner submits a reply affirmation of counsel in response to respondent’s answer and an affidavit from her father as an attachment thereto.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified by the oath of at least one of the petitioners.  Section 275.6 of the Commissioner’s regulations sets forth the form of an affidavit of verification.  Petitioner’s reply was not properly verified in violation of §275.5.  Therefore, I have not considered it (see e.g. Appeal of McAvey, 56 Ed Dept Rep, Decision No. 16,978; Appeal of a Student with a Disability, 46 id. 102, Decision No. 15,454; Appeal of Nocerino, 40 id. 244, Decision No. 14,472; Appeal of Principio, 39 id. 11, Decision No. 14,157).

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).

In accordance with a directive from my Office of Counsel pursuant to §276.5 of the Commissioner’s regulations, respondent’s superintendent submitted an affidavit dated December 9, 2016 stating that petitioner’s children are no longer enrolled at respondent’s schools.   Accordingly, matter is moot and the appeal must be dismissed (see Appeal of K.S., 51 Ed Dept Rep, Decision No. 16,319).

 Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on the students’ behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.