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Decision No. 18,312

Appeal of T.R., on behalf of her sister,[1] from action of the Board of Education of the Half Hollow Hills Central School District regarding residency and homelessness.

Decision No. 18,312

(July 31, 2023)

Frazer & Feldman, LLP, attorneys for respondent, Bryan Georgiady, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that her sister (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Briefly, petitioner enrolled the student in respondent’s district as a homeless student in June 2020.  In May 2022, petitioner indicated that she would be leaving the state.  She further asserted that the student would be “temporarily staying” with her aunt, who lived outside of respondent’s district.  On May 15, 2022, petitioner executed an affidavit transferring custody and control of the student to the aunt.  By letter dated May 25, 2022, respondent found that the student had a fixed, regular and adequate nighttime residence with the aunt.  This appeal ensued.

Petitioner contends that the student currently lives with her but will soon “be forced to temporarily live” with the aunt due to economic hardship.  She seeks a determination that the student is entitled to attend respondent’s schools and receive transportation.

Respondent contends that the petitioner is no longer the legal guardian for the student.  Respondent further contends that the student has a fixed, regular and adequate nighttime residence with the aunt, who is her legal guardian.

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 that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

In an affidavit dated July 24, 2023, respondent’s assistant superintendent for finance and facilities indicates that the student attended its district under McKinney-Vento’s automatic stay provision[2] for the 2022-23 school year; that the aunt exercised custody and control over the student during the entire school year; and that the middle school’s guidance director visited the aunt’s home and found it to be fixed, regular and adequate.  Thus, while petitioner asserts otherwise in the petition, it is now beyond dispute that the aunt is the student’s legal guardian.  As such, petitioner lacks standing to maintain the instant appeal (see Appeal of M.M., 61 Ed Dept Rep, Decision No. 18,013; Appeal of A.S., 59 id., Decision No. 17,801).[3]




[1] Prior to the transfer of guardianship described herein, petitioner was the student’s legal guardian.


[2] 42 USC § 11432 (g) (3) (E) (i); see also Education Law § 3209 (5) (c).


[3] Were the aunt to bring such an appeal, she would be required to prove that the student lacks a fixed, regular and adequate nighttime residence at her home.