Workgroup on Improving Education For Children in

APPOINTING A SURROGATE (EDUCATIONAL DECISION-MAKER) FOR CHILDREN WITH DISABILITIES IN FOSTER CARE

Background

Children in care may not have a consistent adult to advocate for educational services and support educational goals the way a parent typically would. For children with (or suspected of having) disabilities, the need for an educational decision-maker is even more acute because federal law specifies that only certain individuals can act as a “parent” to make special education decisions. The Individuals with Disabilities Education Act (AIDEA@) allows Dependency Courts to determine the educational decision-maker for children under their jurisdiction with, or suspected of having, a disability. Not having a legally authorized educational Table of Contents decision-maker can hold up evaluations and appropriate special education services. Background ……………………………………………..1 One study found that the education and Why is it important to designate a “parent” to make transition plans of youth with disabilities in education decisions for children with disabilities?...... 2 care were lower quality than their peers, Who is a Parent under IDEA?...... 2 and youth in foster care were less likely to When Should the Court Designate an Educational Decision-Maker?...... 2 have an advocate ( member, foster Educational Decision-maker Flowchart………………4 parent or educational surrogate) present at Who Should be Appointed as a Surrogate Parent?...5 their education planning meetings. In What are the responsibilities of a Surrogate Parent?5 addition, confusion results when the Can the school evaluate a child when there is no custodian or caseworker can sign consents parent?...... 5 for school activities, but may not hold Who can Consent to School Decisions that Do Not parent status for purposes of IDEA. Relate to the Child’s Disability?...... 6 Checklists for Courts and Surrogate ………..7 This memo summarizes relevant federal and Resources……………………………………………….8 state law and provides guidance for Judges Sample Orders Appointing Surrogate Parent………..9 Sample Motion by DCF Seeking Appointment of on designating someone to make special Surrogate Parent………………………………………14 education decisions for a child in care.

The Children’s Legal Services Workgroup to Improve Education of Children in Foster Care is a collaboration of legal services organizations who receive funding from The Florida Bar Foundation’s Children’s Legal Services Grants Program. We are grateful to The Florida Bar Foundation for their support. The workgroup participants are: Rebecca Bell (Bay Area Legal Services), Mary K Brennan (Jacksonville Legal Aid, Inc.), Barbara Briggs and Amy Genet (Legal Aid Society of Palm Beach County), Carsandra Buie and Elizabeth Swanson (Community Legal Services of Mid- Florida), Rochelle Marcus (Legal Aid Service of Broward County, Inc.), Andrea Moore (Forida’s Children First), Patrice Moore (Public Defender Office of Pinellas County), Lissie Salazar (Legal Services of Greater Miami, Inc.), Jodi Siegel (Southern Legal Counsel), Kele Williams (University of Miami School of Law Children and Youth Law Clinic) and Charlie Thurston (Brevard County Legal Aid).

For more information, please the group’s co-chairs Andrea Moore ([email protected] or 954-796-0860) or Kele Williams ([email protected] or (305) 284-3123).

Why is it important to Designate a “Parent” to Make Education Decisions for Children with Disabilities?

IDEA is a federal law that mandates that children with, or suspected of having, a disability are identified, evaluated and provided individualized educational services to meet their unique needs. Once a child is found eligible for special education services (in Florida called exceptional student education), an Individualized Education Program (IEP) is developed by the child=s parents, , psychologist and other school officials to identify learning goals and educational services for the child. IDEA is premised on strong parental participation. A parent requests and consents to evaluations, services and placements. Parents also have the right to receive school records; participate as an IEP team member; receive progress reports; receive notice of proposed changes to the child=s IEP; request an Independent Educational Evaluation; and commence administrative and court proceedings to challenge school district decisions on identification, evaluation, placement or the provision of a free appropriate public education. It is, therefore, critical that every child have someone who acts as a Aparent@ for purposes of special education.

Who Is a AParent@ under IDEA?

Under IDEA, the following people can act as a Aparent@:

(a) A biological or adoptive parent; (b) A foster parent; (c) A guardian with authority to act as the child=s parent or who has the authority to make education decisions for the child (but not the State if the child is a of the state); (d) A person acting in the place of a biological or adoptive parent (including a family member) with whom the child lives, or someone legally responsible for the child=s welfare; or (e) A surrogate parent

20 U.S.C. ' 1401(23); 34 C.F.R. ' 300.30.

When Should a Court Designate an Educational Decision-Maker?

Dependency courts have the authority to designate a specific person in categories (a) through (d) above to be the educational decision-maker for a child, or to appoint a surrogate parent. At shelter, disposition and every judicial review, the Court should ensure that an appropriate person is acting as the child’s parent for special education issues. The steps below and the flowchart on page 4 will help you decide when to appoint a surrogate parent.

Step 1: Can the Biological/Adoptive Parents Serve as the Parent? First the Court should determine whether the biological or adoptive parent can act as the educational “parent.” The IDEA regulations provide that a biological or adoptive parent who is Aattempting to act as the parent,@ is presumed to be the parent unless the person does not have legal authority to make educational decisions for the child. 34 C.F.R. ' 300.30(b)(1). If the case plan goal is reunification, the Court should consider empowering parents to actively participate in their child=s education. It may even be appropriate to include education-related tasks in the case plan and to refer the parent for services to educate the parent on how to meet the child=s . If, however, the Court finds that it is not in a child=s best interests for the biological parent to make educational decisions, the Court may issue an order limiting the biological parent=s right to make education decisions and designating someone else as the educational decision-maker.

2 Step 2: Can a Foster Parent, Guardian or Caregiver Serve as the Parent? Next, the Court should decide if someone else meets IDEA’s definition of parent. If the biological or adoptive parent=s whereabouts are unknown, parental rights have been terminated or the Court finds that it is not in the child=s best interests for that person to make education decisions, the Court should ensure that someone else is acting as a Aparent.@ The Dependency Court has the authority to identify a foster parent; or guardian with authority to make education decisions; or other person in a parental role with whom the child lives, such as a or other relative to act as a parent for special education purposes. 34 C.F.R. ' 300.30(b)(2).

It should be noted that a court order is not necessary for the school to recognize a foster parent, legal guardian or custodian as the parent. There may, however, be certain circumstances when it is helpful for the Court to issue an order designating one of these people as the educational decision- maker. For example, the Court should specify who is the parent in the following situations:

¾ the biological parent wants to make educational decisions but the Court decides it is not in the child’s best interests ¾ more than one person wants to act as a child=s parent and meets the definition of parent under IDEA ¾ the school is unaware of other people in the child=s life who may qualify as a parent under IDEA ¾ the person to whom the school has been sending notices (for example, a foster parent) is not actively participating in the child=s education.

Once the Court issues an order designating a specific person as a parent, then the school must recognize that person as the parent.

Step 3: Should a Surrogate Parent be Appointed? If the child has no parent (as defined in IDEA and above) or, after reasonable efforts, the parent cannot be located, then a Dependency Court may appoint a surrogate parent for a child under its jurisdiction. 34 C.F.R. ' 300.519(a); 34 C.F.R. § 300.45. The school district may also appoint a surrogate parent.

In most cases, a surrogate parent should be appointed for children who reside in group or other non-foster placements. The Department of Education (DOE) Technical Assistance Paper states that a surrogate parent may be appointed if the child lives with a foster parent but the foster parent does not have a long-term parental relationship with the child or is unwilling or unable to represent the child=s educational interests. TAP, p. 7.

3 Educational Decision-Make Flowchart

Make sure caseworker or Does the child have a disability or is the child having caregiver advocates in NO problems in school that make you suspect a disability? school. IDEA is not implicated.

YES NO Do you know the whereabouts of the biological/adoptive parent? YE

YES YES Have the biological /adoptive parents’ rights been terminated?

NO YES The biological/adoptive parent Are the biological/adoptive parents willing and able to advocates in school. advocate for special education services in school? No court order is needed.

NO

Is the child in a , therapeutic foster home, YES residential YES facility or DJJ facility?

NO

Is the child’s foster parent, guardian or caregiver willing and able to advocate for the child to receive special education services? NO

YES

This person is authorized to serve as a “parent” under IDEA. No court order is necessary for school to recognize this person. But court should do an order if helpful to clarify the specific person who can make special education decisions.

YES The child needs a surrogate parent. Is there a gal, legal Court appoints surrogate services provider, relative or non-relative or other person parent. who can act as a surrogate?

NO

Refer to school district for appointment of surrogate parent4 within 30 days. Who Should be Appointed as a Surrogate Parent?

A surrogate parent appointed by a court cannot be an employee of the Department of Education, local school district, Department of Children & , community-based care provider or other agency that is involved in the education or care of the child. 34 C.F.R. ' 300.519(c), (d)(2)(1). In addition, the staff of group care facilities may not serve as surrogate parents. Fla. Admin. Code R. 65C-28.004(8). Ideally, a surrogate parent should be someone who knows the child and is willing to advocate for the child in school, e.g., a relative, guardian ad litem, or other adult involved in the child=s life even if the person has never lived with the child. A sample Order of Appointment is attached.

If an appropriate surrogate cannot be found, then the Court may request that the school district appoint a surrogate parent. The school district must appoint a surrogate parent within 30 days of the determination that a child needs a surrogate parent. 30 C.F.R. ' 300.519. Federal law and state rules impose other requirements for surrogate parents appointed by school districts. 34 C.F.R. ' 300.519; Fla. Admin. Code R. 6A-6.0333, TAP 2007-23.

What are the Responsibilities of a Surrogate Parent?

Under federal law, the surrogate parent may represent the child in all matters relating to B (1) The identification, evaluation and educational placement of the child; and (2) The provision of a free appropriate public education to the child 30 C.F.R. ' 300.519. To effectively do this, a surrogate parent should meet with the child and the child=s teachers, review the child=s educational records, attend all progress and IEP meetings at the child=s school, and make decisions based on what they think is best for the child. The surrogate parent should also update the Court on the child=s educational progress at each judicial review. A checklist for surrogate parents is appended. Although not required by federal law, court-appointed surrogates should attend surrogate parent training sessions offered by the school district or others in the community or somehow demonstrate knowledge of special education law.

Can the School Evaluate a Child when there is no AParent@?

A Aparent@ must consent for a school to do an initial evaluation of a child who is having problems in school and is suspected of having a disability. For children in out-of-home placement, the school does not have to obtain parental consent if

(a) despite reasonable efforts, the school cannot locate the parent; (b) the parent=s rights have been terminated; or (c) the parent=s rights to make educational decisions have been subrogated by a Court and consent has been given by an individual appointed by the Court to represent the child.

34 C.F.R. ' 300.300.

Who Can Consent to School Decisions that do not Relate to the Child’s Disability?

This memo deals specifically with educational decision-makers for children with, or suspected of having, disabilities. Regardless of who is the special education decision-maker, a foster parent or caseworker may provide permission for other kinds of school activities, such as field trips or participation in extracurricular activities. In addition, other people in the child=s life, such as

5 caseworkers, foster parents, guardians ad litem, attorneys ad litem and caseworkers can and should advocate for the child, consult with each other and participate in school meetings. Only the legally authorized special education decision-maker can consent to evaluations, sign IEPs as the Aparent@ or request a due process hearing. But all of the adults in the child=s life should work together to ensure that the child=s needs are being met.

6 Checklist for Dependency Court

< Determine if child has already been identified as needing special education services (i.e., does the child have an IEP?) < If not identified, determine if there is reason to suspect child should be evaluated for special education services (e.g., is the child doing poorly in school or having behavioral problems?) and request that the school conduct evaluations < At shelter hearing, dispositional hearing and at each judicial review, determine who is child=s special education decision-maker. < If the child already has an educational decision-maker, ask that person to report on the child’s progress. < If the child does not have an educational decision-maker, determine if biological or adoptive parent is available, willing and able to act as parent. < If not, determine if a foster parent, guardian or custodian should be designated as parent for special-education decisions. < If not, appoint surrogate parent or order school district to appoint surrogate parent. < If surrogate parent is an attorney or other person who will be involved in the child’s dependency case, consider including a provision allowing the surrogate parent access to the child’s dependency records

Checklist for Surrogate Parent

< Review the Order Appointing Surrogate Parent. < File and serve an Acceptance of Appointment as Surrogate Parent. < Meet with the child for whom you are appointed and, separately, with the foster parents or relatives with whom the child is living. < Write and mail introductory letters to the school. Enclose the judge=s order of appointment. < Gather records concerning the child. < Complete a contact sheet for your own use. < After introductory letters have arrived, call recipients and arrange necessary meetings. < Ask about dates, times, and places for any upcoming IEP meetings or other relevant meetings. < If the child has a diagnosed disability, educate yourself about that disability. < Prepare a group e-mail to share important information swiftly. < Meet with teacher, special education teacher, and other professionals. < Identify needed evaluations, services or placements. < Make written request to school system for meetings, evaluations, services, or placements. < Prepare periodic written reports to Court advising of child=s educational status.

7 Resources

Special Education Decisions for Children in Foster Care: Everyone Has a Role, ABA Child Law Practice, Vol. 26 No. 2 (April 2007).

Florida Department of Education, Technical Assistance Paper 2007-23, Surrogate Parents for Exceptional Students (Feb, 19, 3007).

Asking the Right Questions: A Judicial Checklist to Ensure That the Educational Needs of Children and Youth in Foster Care are Being Addressed

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Sample Order Appointing Surrogate Parent

[Case style] ORDER APPOINTING SURROGATE PARENT

The Court finds that: (a) the best interests of the child, ______, would be promoted by the appointment of a surrogate parent; (b) the child is entitled, under federal and Florida law, to the assistance of a surrogate parent; and 8 the individual named below is qualified to be, and has been trained as, a surrogate parent, and is not Aan employee of the State education agency, local education agency, or any other agency that is involved in the education or care of the child.@ See Individuals with Disabilities in Education Act (AIDEA@), 20 U.S.C. '1415(b)(2)(A). See generally 34 C.F.R. ''300.519 & 303.406; '39.0016(3) & (4); '39.4085(17), Fla. Stat.; Fla. Admin. Code R. 6A-6.0333. The child has, or is suspected of having, a disability that affects their education. To better inform the surrogate parent of the child=s circumstances, the Court notes that the child (check all that apply): has previously been diagnosed with the following conditions: ______has difficulty reading well has speech and language difficulties has hearing or vision difficulties has changed schools and would benefit from a stable school assignment has experienced a marked decline in grades or on other progress measures may have emotional or mental health conditions which impede learning other: ______ACCORDINGLY, it is ORDERED that: 1. ______is appointed as a surrogate parent for ______. 2. The surrogate parent named above has the following rights, duties and responsibilities: a) to request or respond to requests for evaluations of the child; b) to review and keep confidential the child=s educational records; c) to participate in case conferences; d) to express approval or disapproval of a child=s educational placement; e) to request and participate in Individual Education Plan (IEP) meetings; f) to monitor the child=s educational development; g) to help the child access available and needed educational services; h) to aid the child in securing all rights provided the child under the IDEA; I) to meet the child face-to-face; and j) to attend appropriate dependency court hearings to address the educational needs of the children. k) challenge any matter relating to the evaluation, identification, placement, and the provision of a free and appropriate public education (FAPE). 3. As to all educational issues affecting the child, principals, teachers, administrators, and other employees of the Public Schools shall communicate with the surrogate parent in the same manner as if he or she were the child=s parent or legal guardian, and shall provide the surrogate parent the same access to the child=s records, and, as to all educational decisions, shall address the requests of, and accept the decisions of, the surrogate parent in the same manner it would were he or she the child=s parent or legal guardian. 4. As to educational issues only, the surrogate parent assumes the role which would ordinarily be filled by the child=s biological parent(s), and, as to educational issues, is

9 entitled to exercise the same rights as would a biological parent. The surrogate parent is the only person authorized to request, decline, or consent to, educational evaluations, services, and placements for the child named above. No biological parent, foster parent, guardian ad litem, caseworker, or other individual possesses this authority.

ORDERED on ______, 200___, in [city],[county],[state]. ______Judge Copies to: School District, c/o Director, Special Education Surrogate parent named above Child=s principal Attorney for Department of Children and Families DCF caseworker - and - (Check all that apply) Guardian ad Litem Attorney for Attorney for father Attorney ad litem for child Child named above Foster parent Relative caregiver Other

10 IN THE CIRCUIT COURT OF THE ______JUDICIAL CIRCUIT, IN AND FOR ______COUNTY, FLORIDA.

CASE NO.: DIVISION: JV-

IN THE INTEREST OF

A Child, ______/

ORDER APPOINTING “SURROGATE PARENT”

THIS CAUSE came before the Court at the hearing on

______(or in Chambers). The court heard the Motion of the

______(Attorney for the Department, Guardian Ad Litem, etc.) requesting that a Surrogate Parent be appointed for the dependent child, and after testimony and arguments of the parties and finds:

1. The Child has been diagnosed with ______(or alternatively state salient facts).

2. The Child is a _____ year old dependent child pursuant to Florida

Statutes.

3. The Child has not been appointed a “surrogate parent.”

4. The Child’s best interests demand the court appointment of a

11 “surrogate parent.”

Wherefore it is ORDERED and ADJUDGED:

1. ______, Esquire is appointed to serve as “surrogate parent” for ______.

2. ______, Esq. is duly qualified to serve as a

“surrogate parent” pursuant to Rule 6A-6.0333 F.A.C. He/she is, therefore, awarded all the rights and responsibilities of the position, and shall advocate for the child’s best interests.

3. The “surrogate parent,” ______, Esq. may request records from a specified person, agency, or organization, including but not limited to any school system, public or private, any Community Based Care organization and/or lead agency, DCF foster care licensing, any therapeutic/mental health or medical provider including but not limited to , medical doctors, dentists, psychologists and psychiatrists, and inspect and copy without charge any records and documents which relate to the Child.

DONE AND ORDERED in Chambers at ______County,

Florida, this ______day of ______, 2008.

12 ______

(Name) Circuit Judge

Copies to : ______Esq., DCF ______, Esq., GAL ______, FSC ______, District Director Exceptional Student Education (address of district director)

______, Esq. (address of court app’ted surrogate parent)

13 IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR ______COUNTY, FLORIDA

CASE NO.: -AXXX-MA DIVISION: JV- IN THE INTEREST OF A Minor Child, DOB ______/

EX PARTE MOTION OF THE DEPARTMENT OF CHILDREN AND FAMILIES FOR THE APPOINTMENT OF AN EDUCATIONAL SURROGATE PARENT

COMES NOW, the Florida Department of Children and Families (hereinafter

Department) by and through its undersigned attorney, and respectfully moves this

Court, ex parte, for an order appointing an educational surrogate parent for the above named child. In support thereof, the Department states that the Child is __ years old, is being cared for in a group foster home, and has been diagnosed with

______and is in need of an educational surrogate parent. (See

Affidavit attached.).

WHEREFORE, the Department requests that an order be entered appointing______, educational surrogate parent for the above named child.

I HEREBY CERTIFY that a copy of the foregoing Motion has been furnished to the below

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named individuals by HAND/ FAX/ U.S. MAIL this ______day of October, 2006

______

Copies to:

GAL Program Director, ESE Program

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