Decision No. 12,562

(August 12, 1991)

SOBOL, Commissioner.--Petitioner appeals, on behalf of her son, from respondent's determination that her son is not a resident of the Edmeston Central School District and from its refusal to admit him to the schools of that district tuition free. The appeal is dismissed.

Petitioner's son is a six year old child with Down's Syndrome. When her son was approximately five months old, petitioner, a resident of Mexico City, Mexico, placed him in the family home of Samuel and Elizabeth Conde, located in the Edmeston Central School District. The Condes are certified by the New York State Department of Social Services to provide care "at board" for children up to the age of 18. Apparently, petitioner pays room and board to the Condes, where her son has lived continuously since infancy. The Condes sought the child's admission to respondent's school district for the 1990-91 school year. By letter dated August 23, 1990, respondent denied their request based on its determination that the child was not a resident of the school district. Respondent indicated that petitioner's son would be permitted to attend the public schools only upon payment of tuition. On September 14, 1990, petitioner initiated this appeal. In her papers she indicates that she is unable to pay the tuition demanded by respondent while the appeal is pending. Petitioner requested a stay of the tuition charge and to have her son admitted to school in Edmeston. I granted the stay on October 2, 1990.

On June 11, 1991, petitioner's attorney submitted an affidavit asserting that as of January 23, 1991, petitioner's son was no longer staying at the Condes' home and instead was in the state of Florida.

To the extent that petitioner seeks an order directing respondent to educate her child tuition free, the appeal has become moot because he is no longer staying at a residence within respondent school district. The Commissioner will determine only matters which are in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest (Appeal of Dimilia, ____ Ed Dept Rep ___, Decision No. 12507, dated May 28, 1991; Appeal of Sileo, 28 id. 313; Appeal of Huggins, 28 id. 173).

Even if the appeal had not become moot as to petitioner's son, I would dismiss it on the merits. It has been held that residence must be determined in accordance with the presumption that a child's residence is considered to be that of his parent or guardian unless such presumption is rebutted. The presumption can be rebutted by examining the totality of circumstances (Catlin v. Sobol, 155 AD2d 24, rev'd on other gnds, 77 NY2d 552 [1991]). Petitioner herself asserts that the circumstances of the Catlin case are almost identical to the circumstances in the current appeal. In view of petitioner's concession that Catlin is controlling and in the absence of proof that given the totality of the circumstances that petitioner has relinquished custody and control of her son to the Condes, I am constrained to conclude that the presumption was not rebutted in this case. Therefore, the residence of petitioner's son, had he stayed at the family home, would be deemed to be that of his mother, and not with the family home at board. Petitioner's son would not, therefore, be entitled to tuition free education.

THE APPEAL IS DISMISSED.

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