Workgroup on Improving Education For Children in Foster Care APPOINTING A SURROGATE PARENT (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 (family 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 Parents………..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 contact 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, teachers, 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 ward 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 special needs. 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; legal guardian or guardian with authority to make education decisions; or other person in a parental role with whom the child lives, such as a grandparent 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 homes or other non-foster home 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.