Appeal of DERRICK RAINEY, on behalf of his son, DERRICK, from action of the Board of Education of the Uniondale Union Free School District[1] regarding residency.

Decision No. 17,862

(July 1, 2020)

                Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that his son, Derrick (“the student”), is not a district resident.  The appeal must be dismissed.

The student was enrolled in respondent’s district and attended Turtle Hook Middle School for the 2018-2019 school year.  According to petitioner, the student resides with petitioner’s cousin, Latisha Huffman, at a residence within respondent’s school district (the “in-district address”).  The record reflects that petitioner resides at an address located outside of respondent’s district (the “out-of-district address”).  Petitioner maintains that he transferred custody of the student to Ms. Huffman in August 2018 due to his work hours and the “environment” of the out-of-district address.

In September 2018, Ms. Huffman requested that respondent provide transportation for the student between Turtle Hook Middle School and a location that she described as the student’s “day care.”  The address Ms. Huffman provided, however, was the out-of-district address.  Respondent thereafter commenced a residency investigation.  An investigator surveilled the in-district address on October 23, 2018 and February 7, 2019 during the mornings.  The investigator did not observe the student leaving for school on either day.  The investigator also conducted home visits at the in-district address on November 12, 2018, January 21, 2019, and March 17, 2019 – days the student did not have school.  During each visit, Ms. Huffman advised the investigator that the student lived at the in-district address but was not home.

The investigator surveilled the out-of-district address the mornings of October 17, 2018 and January 24, 2019.  On both days, the investigator did not observe the student entering or exiting the residence.  Additionally, on March 21, 2019, after confirming that the student had attended school that day, the investigator surveilled the out-of-district address for approximately one hour after school but did not observe the student.   The investigator also conducted a home visit at the out-of-district address on March 27, 2019.  During this visit, both petitioner and the student answered the door and, according to the investigator, petitioner explained that the student “live[d] with him” and “sometimes stay[ed]” with Ms. Huffman.

By letter dated March 29, 2019, respondent’s administrative assistant for central registration (“administrative assistant”) informed petitioner of the district’s determination that the student was not a district resident and, as such, would be excluded from respondent’s schools effective April 5, 2019.

On April 2, 2019, the administrative assistant met with Ms. Huffman to discuss the district’s determination.  During this meeting, Ms. Huffman stated that the student lived with her at the in-district address and that, on the day the investigator visited the out-of-district address, the student had stayed with petitioner because he was sick.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 10, 2019.

Petitioner contends that the student resides with Ms. Huffman at the in-district address.  Petitioner further asserts that he has transferred custody of the student to Ms. Huffman and that the student living with Ms. Huffman is in the student’s best interest because petitioner works nights and is unable to care for the student at this time.  For relief, petitioner requests a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent contends that the appeal must be dismissed, inter alia, because petitioner lacks standing to bring this appeal.  On the merits, respondent asserts that its determination was neither arbitrary nor capricious.

The appeal must be dismissed for failure to join Ms. Huffman, a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

Here, petitioner asserts that he transferred custody and control of the student to Ms. Huffman.  In response to a request for additional information pursuant to 8 NYCRR §276.5, respondent submits affidavits that petitioner and Ms. Huffman executed on August 30, 2018 in which they both indicate that petitioner surrendered custody of the student to Ms. Huffman.  The record also contains a “Special Circumstance Statement” completed by Ms. Huffman on April 2, 2019 in which she identifies herself as the student’s “parent/guardian” and states that the student “lives with [her] and [her] kids.” 

It is unclear whether petitioner maintains standing to bring this appeal in light of his alleged transfer of custody and control of the student to Ms. Huffman (Appeals of James, 58 Ed Dept Rep, Decision No. 17,659; Appeal of Peykar, id. 141, Decision No. 14,003).  However, I need not resolve that issue because, at the very least, petitioner was required to join Ms. Huffman, the individual to whom petitioner asserts he transferred custody and control because she could be adversely affected by this appeal and petitioner did not name Ms. Huffman in the caption of the appeal or serve her with a copy of the petition.  Accordingly, the appeal must be dismissed for failure to join Ms. Huffman.

Although the appeal must be dismissed as described above, I note that the student’s legal guardian retains the right to reapply for admission to respondent’s schools on the student’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.

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

THE APPEAL IS DISMISSED.

END OF FILE