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Decision No. 17,332

Appeal of ELAINE WALSBERG, on behalf of her daughter LEXI, from action of the Board of Education of the Babylon Union Free School District regarding residency.

Decision No. 17,332

(February 27, 2018)

Guercio & Guercio, LLP, attorneys for respondent, Anthony J. Fasano, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Babylon Union Free School District (“respondent”) that her daughter, Lexi, is not a district resident.  The appeal must be dismissed.

Petitioner asserts that, during the 2015-2016 school year, her daughter resided within respondent’s district. However, on or about October 2015, the district received returned mail marked “Return to Sender” that it had sent to petitioner at the last address it had on file for petitioner’s daughter.  Thereafter, it conducted a residency hearing, which took place on October 30, 2015.  At the hearing, petitioner admitted she moved to another address located outside of the district with her other daughter. However, petitioner indicated that Lexi continued to reside within the district because Lexi moved in with her grandfather, at an address within respondent’s district. 

On the same date as the hearing, respondent’s superintendent of schools issued a residency determination, finding that petitioner’s daughter was not a legal district resident and therefore, was not entitled to attend its schools tuition free, and she would be excluded from respondent’s schools effective December 7, 2015.  Nevertheless, the superintendent wrote that, should petitioner properly file an administrative appeal pursuant to Education Law §310 prior to that date, respondent would agree to allow Lexi to remain in attendance pending a final determination by the New York State Commissioner of Education.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 28, 2016.

Petitioner seeks a determination that her daughter is entitled to attend respondent’s schools during the 2015-2016 school year as a district resident and without the payment of tuition.

Respondent asserts that petitioner has failed to meet her burden of establishing a right to the relief requested.  Respondent argues that petitioner has not rebutted the presumption that Lexi’s residence remains with her mother outside respondent’s district.  Respondent further asserts that there has not been a total and permanent transfer of custody and control by Lexi’s mother, and therefore, Lexi is not a district resident.  Respondent also claims that the instant appeal is untimely and that there are numerous procedural deficiencies in petitioner’s pleadings.    

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 response to an inquiry from my Office of Counsel, respondent’s superintendent of schools confirmed by affidavit dated December 11, 2017 that petitioner’s daughter did, in fact, graduate from respondent’s high school on June 30, 2016 and is no longer enrolled in respondent’s schools.  These events have rendered the instant appeal moot. 

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