CHILDREN’S LEGAL BULLETIN        Spring 2002

                                                                          

Special Education and Foster Care:*

State Policies Leave Foster Children with Disabilities

Unprotected in the Special Education System

 

Before the Education for All Handicapped Children Act (now called the Individuals With Disabilities Education Act, or IDEA**) was passed by the U.S. Congress in 1975, more than one million children with disabilities were excluded from school and more than four million were receiving an inappropriate education. The IDEA guarantees to each child deemed to have special needs a legally enforceable right to a free, appropriate, public education (FAPE) in the least restrictive environment (LRE).  This means that the student’s education must be individualized to meet his or her unique needs, and that the student must be educated in the same setting (e.g. classes/schools) as non-disabled students, to the maximum extent appropriate.

 

The IDEA provides for the enforcement of rights through parent advocacy. Parents have a host of procedural rights designed to empower them to obtain appropriate services for their child from their local school district.  The scope of services for any particular child is worked out in a decision-making process involving the child’s parents and school district staff members, culminating in the development of an “individualized education program” or “IEP” for the child, which is then implemented by the school district. 

 

Parents are empowered in the decision-making process through a “veto” power over certain school decisions, notification requirements, the right to request and participate in school meetings,  and the right to challenge action or inaction by a school district by requesting mediation or a due process hearing before an administrative law judge. The absence of parent advocacy can deny a child access to appropriate services.  In fact, without the written informed consent of a child’s parent or a court order, a school district cannot evaluate the child and cannot provide special education or related services to the child under an initial IEP.

 

The emphasis on parent advocacy in the IDEA is premised on an intact family where the parents are willing, able and legally authorized to advocate for their child. This article is concerned with the experiences of school-age children (ages 3 through 21) in New Jersey who have or may have a disability, and who have been removed from their parents by the State and placed in foster care.[1] According to the Division of Youth and Family Services (DYFS), there are increasing numbers of children in foster care who are exhibiting learning disabilities, perceptual impairments and/or severe emotional disturbances. Studies around the country indicate that a large percentage of children in foster care are eligible for special education, with some studies reporting rates three times greater than the rate of disabilities among school-age children generally. In the year 2000, there were approximately 9,650 children living in out-of-home placements in New Jersey, the majority of whom were in foster homes.  At the present time, New Jersey does not publish data on the incidence of disabilities among children in foster care.

 

The Child Placement Bill of Rights Act

The State of New Jersey has a legal obligation to protect the education rights of children in foster care. Under the Child Placement Bill of Rights Act (the “Act”), a child placed outside of his or her home by DYFS has the right to receive an educational program that will maximize the child’s potential, “consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child’s physical or mental development.”[2]  According to the Act, this right is independent of the child’s parents or legal guardian, and it is the obligation of the State to recognize and protect this right in the context of a “clear and consistent policy to promote the child’s eventual return to his home or placement in an alternative permanent setting.” [3]

 

Currently, State Laws and Regulations Fail to Protect the Education Rights of Children with Disabilities in Foster Care.

Every child with a disability who is living in foster care needs a parent in his or her life who is willing, able and legally authorized to represent the child in the special education system.  Under Federal and State law, the child’s representative must be an individual who is deemed the child’s legal “parent,” and cannot be the State or the child’s DYFS caseworker.  Procedural protections in Federal and State law apply only to these properly designated “parents.”  When a child with a disability does not have a parent who is officially identified or recognized by the school district as the child’s “parent,” problems that should be solved within the special education system (in school meetings, mediation, and/or due process), are often not solved at all. In some cases, the problem persists to the point where it threatens the stability of the child’s foster placement.

 

There is a gap in parent advocacy for children in foster care who have special needs. The major failings of current policy are:

(1)    There is no official oversight to make sure that someone assumes responsibility to advocate for the child’s education rights; 

 

(2)    In many cases, the exclusive right of the child’s birth or adoptive parent to make education decisions for the child are preserved, regardless of whether this parent is willing or able to advocate for the child; and

 

(3)    There is little or no interagency cooperation between DYFS and the New Jersey Department of Education (“DOE”) to make sure that children in foster care are protected in the special education system.     

 

Here are brief summaries of two cases from the advocacy files of the Children’s Legal Resource Center at ACNJ, with names changed for confidentiality. 

 

Jamal

Jamal is a bright, nine-year old boy with an emotional disturbance, which is considered a disability under the IDEA.   DYFS placed Jamal in a foster home based on the informed consent of Jamal’s legal guardian (i.e. without a court order).  After he was enrolled in the new school district, the school district failed to educate Jamal. Even though Jamal had been in an in-district program in his previous school district, the child study team informed the foster parent that Jamal would be placed in an out-of-district school for children with disabilities as soon as an acceptable placement could be found. The foster parent asked for home instruction in the meantime, but that was refused because the district could not provide a teacher during the school day, and Jamal attended an after-school therapy program five days per week.  Jamal was out of school for about 6 months.

 

The school district failed to properly identify Jamal’s legal guardian as his legal “parent” for education decisions and failed to send notices to him, etc.  Neither the foster parent nor the DYFS caseworker was willing or authorized to challenge the school district’s actions.  During most of that time, Jamal’s legal guardian was not aware that he had any responsibility to advocate for Jamal, though he did eventually get involved when ACNJ offered to provide him with legal assistance.           

 

Lena

Lena is a six-year old autistic girl who was placed in foster care at birth.  The parental rights of her parents were terminated when she was 5.  At about the same time, she was moved into a new foster placement in a different school district and her former school district terminated her placement at a special school for autistic children.  The foster placement was an  “emergency placement” that was intended to last only until DYFS found a more suitable foster home.  It was June and the foster parent did not realize that the child needed educational services during the summer.   There was a delay of two months in enrolling Lena in the school district. 

 

In September, the local school district informed the foster parent that it would take a while to locate a school for Lena and offered no other services in the meantime. Under existing education regulations, the school district was required to appoint a surrogate parent to represent Lena, but it failed to do so.  Without a surrogate parent, there was no parent who was officially recognized as the person responsible for advocating for Lena’s education rights in the special education system.

 

In each case, the local school district illegally excluded the student from school for several months. In each case, the school district also violated the child’s right to be represented by a duly authorized “parent” who could challenge the actions of the school district.   What Should Have Happened for Jamal and Lena?

 

Timely Enrollment

It is the responsibility of DYFS to make sure a child in foster care is enrolled in the local school district on a timely basis. The DYFS caseworker and the foster parent can enroll the child without the involvement of any other parent. In the case of Lena, the caseworker should have made sure Lena was enrolled immediately and should have requested that the school district appoint a surrogate parent for her. With proper advocacy, she probably would have been able to stay in her previous county-run school, at least until a more appropriate program and placement could be found.  

 

Immediate Implementation of IEP

When a child transfers to another school district and the school district has reason to know that the child is eligible for special education, the child study team must conduct an immediate review of evaluation information and the child’s IEP.  At a minimum, the school district must immediately provide the child with a program under an interim IEP that is consistent with the child’s IEP or, if the IEP is not available, a program that is consistent with available information. If there is no available information, the child must be placed in an age-appropriate regular education class.  The school district must invite the parent to a meeting to discuss implementation of the child’s IEP and any need for revising the IEP or conducting an evaluation.[4]  Therefore, Jamal and Lena were entitled to immediate educational services consistent with their pre-existing IEPs and/or other available information.   

 

Immediate Identification of Legal “Parent”

If the school district has reason to know that a child who has (or may have) a disability is living in a foster home in the district, the school district must contact the child’s DYFS casemanager to (1) determine whether the parent retains the right to make educational decisions, and (2) determine the whereabouts of the parent. Based on the school district’s determinations in consultation with DYFS, the school district must proceed to identify a parent who is authorized to make education decisions for the child.[5] The process of identifying the “legal” parent is governed by the following provisions in the New Jersey State special education regulations: the definition of “parent;” the  rules specifying the circumstances when a foster parent may “act as a parent,” and the rules specifying when the school district must appoint a “surrogate parent” to represent the child.   (These rules are summarized below.)  

 

New Jersey Law Preserves the Right of a Child’s Birth or Adoptive Parent or Legal Guardian to Make Educational Decisions for the Child Unless and Until There Is a Court Order Terminating That Parental Right or the Parent Cannot Be Identified or Located After Reasonable Efforts.   

New Jersey’s approach to identifying the legal “parent” for a foster child with special needs   favors the preservation of the rights of the birth or adoptive parent or legal guardian, even when the child has been removed from that parent by court order due to abuse or neglect.  State regulations require a court order terminating the parent’s right to make educational decisions before the child is entitled to representation by a foster parent or surrogate parent (unless the parent cannot be identified or located).  This is problematic because the parent:

·        may be unaware of his/her obligation to advocate for the child;

·        may be unwilling to advocate for the child;

·        may be unable to advocate for the child;

·        may have an interest that conflicts with that of the child; and/or

·        may no longer have an ongoing relationship with the child.

 

Here is an explanation of the applicable New Jersey State special education code provisions: 

 

The Definition of “Parent”

New Jersey State education regulations define “parent” as the “natural” or adoptive parent, the legal guardian, the surrogate parent (explained below), a person acting in the place of a parent (such as a grandparent or stepparent with whom the student lives or a person legally responsible for the student’s welfare), and the student himself or herself  if  18 or older and not under legal guardianship.  Unless parental rights have been terminated by a court of appropriate jurisdiction, the parent, as defined in this paragraph, retains all rights under the State’s special education regulations. [6]

 

Foster Parents

The State education code allows foster parents[7] to “act as parents” if all the following circumstances apply:

(1)               The parent’s authority to make educational decisions on the student’s behalf has been terminated by a court of appropriate jurisdiction;

(2)               The foster parent has an ongoing, long-term relationship with the student;

(3)               The foster parent is willing to make the educational decisions required of parents under this chapter; and

(4)               The foster parent has no interest that would conflict with the student.[8]

 

This approach to determining whether foster parents can act as parents is fairly restrictive in that it requires a court order terminating the rights of a birth or adoptive parent or legal guardian before the foster parent could be qualified to act as the child’s parent. 

 

Surrogate Parents

The IDEA requires each State to have specific procedures to protect the rights of the child whenever:

1) the parents of the child are not known;

2) the [school district] cannot, after reasonable efforts, locate the parents; or

3) the child is a ward of the State under the laws of that State.

 

The protection must include the assignment of a surrogate parent.[9]  A surrogate parent is a person appointed by a school district or other responsible State agency to assume parental rights under the special education regulations in order to protect the student’s rights.  Unlike other “parents,” surrogate parents are required to have knowledge and skills that ensure adequate representation of the student.  In addition, certain persons are barred from serving as surrogate parents under conflict-of-interest rules.

 

Unlike some States, New Jersey does not have a centralized surrogate parent program.  The DOE leaves it to individual school districts to appoint surrogate parents to children who are residing in

foster homes in their districts.  Without a formal survey it is impossible to tell for sure whether surrogate parents are being appointed to children who should have them, but anecdotal evidence suggests that most children who are eligible for a surrogate parent do not have one.  Why?  School districts are not held accountable to undertake the process of identifying a foster child’s legal “parent,” and, therefore, they rarely determine that a surrogate parent is required.  

 

Also, the circumstances under which a child is entitled to a surrogate parent are very limited. There are four such circumstances according to State regulations. The first two are (1) the child’s parent cannot be identified or (2) the child’s parent cannot be located after reasonable efforts. There is nothing in the regulations, however, that indicates to the school district when to conclude that a parent cannot be identified or cannot be located. Without very specific protocols on these issues, school districts are reluctant to act.  State regulations must specify exactly what steps the school district is required to take to locate or identify a parent. In addition, there must be interagency cooperation between DYFS and the DOE because there are situations where DYFS will withhold information about the birth or adoptive parent or legal guardian from the school district and insist on being a liaison to that parent. 

 

The other circumstances requiring the appointment of a surrogate are: (3) if the child is under the guardianship of the State, meaning that a court has terminated all parental rights of the child’s parents; or (4) if a court of appropriate jurisdiction terminates the right of the child’s birth and/or adoptive parents and/or legal guardian to make educational decisions for the child and the foster parent does not qualify under the regulations to serve as the child’s parent for this purpose.[10]

 

The term “guardianship” in the regulation represents a very restrictive definition of the term “ward of the State,” one that requires that all parental rights shall have been terminated.  As a practical matter, by the time this occurs, the child has not had a viable birth or adoptive parent or legal guardian for a long time.  In the meantime, the child would not have had a surrogate parent, and the foster parent would not have been authorized to act for the child unless (1) someone had obtained a court order terminating the parent’s right to make educational decisions, and this fact was brought to the attention of the school district, or (2) the school district had determined that the child’s parent could not be identified or located.  

 

When Can a Court Terminate a Parent’s Exclusive Right to Make Education Decisions for the Child?

Obviously, when a court terminates all parental rights, the right to make education decisions for the child is terminated. The question is, when can a parent’s authority to make education decisions be terminated, short of a court-ordered termination of all parental rights?   

 

Under the Child Placement Bill of Rights Act (the “Act”), a child placed outside of his home by the Department of Human Services (through DYFS) is deemed to have the right to receive an education that maximizes his or her potential, and that right is deemed to be independent of the child’s parents or legal guardian.  Arguably, the effect of this statutory right is that it temporarily severs the birth or adoptive parent’s or legal guardian’s right to control the child’s education, including special education decision-making.  Therefore, if a foster child is under the jurisdiction of the family court, the family court could order the termination of the parent’s right to make educational decisions on the student’s behalf while the child continues in placement.  This would give the child access to representation by a foster or surrogate parent.  

 

The Department of Human Services (for DYFS) and the Department of Education Must Expand and Enforce Existing Procedural Protections for Children in Foster Care.

 DYFS must assume responsibility for making sure that children with disabilities in foster care have a parent protecting their rights in the special education system.  In appropriate cases, DYFS may need to obtain a court order terminating the right of the parent to make educational decisions and/or requiring the school district to either recognize the foster parent as the child’s parent or appoint a surrogate parent. 

 

Local school districts must be held accountable for identifying a child’s legal “parent.”  In some cases, school districts simply treat the DYFS caseworker as if he/she is the child’s parent.  This is illegal and casts a cloud over the entire process. In many other cases, school districts accept the authority of the foster parent to act as the child’s parent without ascertaining whether the rights of the birth or adoptive parent or legal guardian have been terminated. If that foster parent  challenges the evaluation, program or placement of the child, the challenge should be allowed to stand even if the school district later identifies another person as the child’s “legal” parent.  Nonetheless, the person who should have been identified as the “legal” parent could come forward to challenge the authority of the foster parent.

 

Existing procedural protections in the State’s special education code are inadequate to achieve their stated purpose of properly identifying the child’s parent.  If they are to achieve their intended purpose, they must be expanded to contain specific, enforceable protocols. In developing appropriate protocols, the DOE should work collaboratively with the Department of Human Services.  The following features should be part of a revised process of identifying a child’s parent:

·        The duty of identifying a child’s parent should be clearly assigned to a particular individual or office within a school district, e.g. the director of special education.

·        Provision should be made for persons involved in the care or education of the child to make an official request for the identification of the child’s parent, and there should be a deadline for such identification.

·        There should be written notification to interested parties of the identification of the child’s parent. 

·        The State should either create a centralized State surrogate parent program within the  DOE or require local school districts to have real surrogate parent programs with potential surrogate parents trained and ready to take on the responsibility of representing children in foster care.

 

DOE Regulations Should Be Amended to Provide a Surrogate Parent for Every Child in Foster Care. 

Under the Child Placement Bill of Rights Act, the State must protect the independent right of a child with disabilities to an appropriate education. State education and child welfare policymakers should undertake a revision of the State’s special education code to guarantee that every child in the custody of DYFS, who has or may have a disability, has a parent who is willing, able and legally authorized to represent the child in the special education system.   One way to do this would be to develop a surrogate parent program that would oversee the identification of an appropriate and qualified surrogate parent for every child who has or may have a disability and who is in the custody of DYFS. Potential surrogate parents should include the child’s birth or adoptive parent or legal guardian, and the child’s foster parent.  In exceptional cases, it might be necessary to pay a surrogate parent, especially if a particular expertise is required.  As required under current regulations, every surrogate parent appointed to represent a child in foster care must have the knowledge and skills necessary to represent the child.  Therefore, training must be provided to surrogate parents. 

 

DYFS Must Develop the Capacity to Solve Educational Problems for Children in Foster Care.

In addition to collaborating with the Department of Education to develop procedures for the identification of a foster child’s legal “parent,”  DYFS should develop its own capacity to understand and solve education problems and the capacity of families caring for children in foster care to solve these problems. 

 

These support services should include:     

·        Mandatory training in special education law and advocacy for all DYFS caseworkers and supervisors and those who serve as the “legal” parents of children in foster care with special needs.

·        Advocacy support services for the “legal” parents of children in foster care, provided by experts in disabilities and the law.

·        Advocacy support services for families that are under DYFS supervision that will enable those families to address the special needs of their children.

 

Conclusion

 

Many children in foster care have disabilities.  Many of them are not receiving the educational services they are entitled to, especially in the months following a transfer to a new foster home.  The State of New Jersey has a legal obligation to make sure that children in foster care receive an education that meets their particular needs, but current State policies are not designed to protect and enforce the education rights of children in foster care who have special needs.  The State must reform its policies to make sure that every child with a disability (or suspected  disability) who is living in foster care has someone who is willing, able and legally authorized to act as the child’s parent for school purposes. 

 

Serious consideration should be given to development of an expanded surrogate parent program that would meet this need.  New Jersey should explore the process utilized in other states like Massachusetts and Maine where every child with special needs who is placed in foster care by court order is entitled to representation by a qualified foster parent or surrogate parent.      

 

In addition, DYFS must build capacity within the agency for solving education problems for children in foster care and children in families under DYFS supervision, including mandatory training programs for DYFS caseworkers and advocacy support services for parents of children with special needs. 

 

*Staff attorneys at ACNJ’s Children’s Legal Resource Center, funded by an IOLTA grant, provide legal information and advice to indigent parents regarding education law.

** The IDEA is codified at Title 20, United States Code, Chapter 33,  §1400 et. seq.   The U.S. Department of Education has promulgated regulations under the IDEA at Title 34, Code of Federal Regulations, Part 300. The IDEA’s safeguards are incorporated into, and given greater definition, in Title 6A, Chapter 14, of the New Jersey Administrative Code. 

 

^[1] For purposes of this article, children in foster care are children who have been placed in foster homes by DYFS.

² N.J.S.A. 9:6B-4(m).

³ N.J.S.A. 9:6B-2(a) and (c).

⁴ N.J.A.C. 6A: 14-4.1.

⁵ N.J.A.C. 6A:14-2.2.

⁶ N.J.A.C. 6A:14-1.3.

7 Even if the foster parent is not authorized to act as parent, the foster parent should always be invited to participate in IEP meetings. The authority for this can be found in N.J.A.C. 6A:14-2.3(i)(2), which permits the parent or the school district to invite other individuals who have special knowledge regarding the child, at their discretion.

⁸ N.J.A.C. 6A:14-1.3.

⁹ 20 U.S.C., Chapter 33, Sec.1415(b)(2).

¹⁰ N.J.A.C. 6A:14-2.2(h)(1).

                                          

References:

 

George, Robert M. (1992).  Special-Education Experiences of Foster Children: An Empirical Study.  Child Welfare, 71(5) pp. 419-438.

 

Godsoe, C. (2000).  Caught Between Two Systems: How Exceptional Children in Out-of-Home Care Are Denied Equality in Education.  Yale Law & Policy Review, 19,  81-164.

 

Jackson, Sonia (1994).  Educating Children in Residential and Foster Care.  Oxford Review of Education, 20(3), 267-280.

 

Jacobson, Linda, (2000).  Academic Fate of Foster Children Gaining More Attention.  Education Week (9/13/2000), 20(2) p. 12. 9/13/2000. 

 

Kellam, Susan (2000). New School, New Problems: Foster Children Struggle in U.S. Schools.  ABA Child Law Practice, 19(5) pp. 72-75.

 

Lindsey, Elizabeth W. (2001).  Foster Family Characteristics and Behavioral and Emotional Problems of Foster Children: Practice Implications for Child Welfare, Family Life Education, and Marriage and Family Therapy.  Family Relations, 50(1), pp. 19-23.

 

Morrison, J.A., Frank, S.J., Holland, C.C., and Kates, W.R., (1999).  Emotional Development and Disorders in Young Children in the Child Welfare System.  Young

 

Children and Foster Care (pp. 33-64).  Baltimore: Paul H. Brookes Publishing Co.

 

Newark Kids Count 2001, Newark: Association for Children of New Jersey.

 

Silver, J.A., Amster, B.J., and Haecker, T., (1999). Young Children and Foster Care.  Baltimore: Paul H. Brookes Publishing Co.

 

Smucket, K.S. and Kauffman, J. M., (1996).  School-Related Problems of Special Education Foster Care Students with Behavioral Disorders:  A Comparison to Other Groups.  Journal of Emotional and Behavioral Disorders, 4(1), 30-40. 

 

Spiker, D. and Silver, J. (1999).  Early Intervention Services for Infants and Preschoolers in Foster Care.  Young Children and Foster Care (pp. 347-372).  Baltimore: Paul H. Brookes Publishing Co. 

 

Weinberg, Lois A. (1997).  Problems in Educating Abused and Neglected Children with Disabilities. Child Abuse & Neglect, 21(9), 889-905.