By: Nina Peckman, Esq. and Mary Coogan, Esq.
In New Jersey, approximately 7,600 children live in foster care situations; many of them have learning issues, some of which have not yet been identified. Because of the complexity of the special education system, it can be a particular challenge for school districts to meet the needs of these students effectively and appropriately, but with collaboration and information, it can be done.
New Jersey law requires that children living in foster care remain in their current school even if their foster home is in another school district unless it is not in the child’s best interest. The continuity of remaining in a familiar school with friends and teachers they know provides educational stability, which can be especially vital for children with disabilities.
While this law helps to minimize academic disruption, many children in foster care have special education needs. When students have lapses in education, frequent moves, and/or trauma from circumstances outside of school, their learning issues may be overlooked, ignored, or misunderstood. Problems can be amplified through the lack of necessary support services. This may result in a student with emotional and/or behavioral concerns or unidentified education problems being subjected to inappropriate disciplinary actions or placed in an inappropriate educational setting, including prolonged home instruction or alternative schools.
When children enter foster care, it is critical that their educational needs are thoroughly assessed and that all relevant parties are involved in making timely decisions to ensure that these children receive the free and appropriate education that is mandated by federal and state law.
As the new school year gets underway, this article looks at the roles and responsibilities of the various people involved in these children’s lives and outlines steps that must be taken to ensure that foster children with learning disabilities are given every support needed to succeed in school.
The Role of State Agencies
The Child Placement Bill of Rights and other New Jersey regulations require the Division of Child Protection and Permanency (DCPP) within the Department of Children and Families (DCF) to make a reasonable effort to ensure that children living in foster care receive an appropriate education.
DCPP must maintain and update a child’s records in school and keep the parent informed about the child’s progress. DCPP is required to provide the foster parent with a copy of the child’s records at the time of placement. A DCPP staff member can write a letter to the child study team (CST) to request an evaluation.
Some children living in foster care are also involved with DCF’s Children System of Care (CSOC), which provides case management and behavioral and emotional health services to children. CSOC therapists provide essential services outside of school to the child and family and can offer important insights in developing an education plan through participation in child study team meetings or in written evaluation reports.
Staff members at both of these divisions should collaborate with each other and share appropriate information regarding the child to help the child succeed academically.
The Role of Parents and Foster Parents
Every child, including children living in foster care, need a consistent and knowledgeable parent or advocate to ensure that the child’s educational needs are met. Under the Individuals with Disabilities Education Act (IDEA) and New Jersey law, children who are deemed eligible for special education services are entitled to have a parent who makes education decisions. “Parent” is defined as a natural or adoptive parent, a legal guardian, a foster parent, a surrogate parent, a person acting in the place of the parent, or the adult student.
When children are placed into foster care, their parents retain the right to be involved in their child’s education unless the parents are not cooperating with DCPP or a court order has limited their rights to this involvement. Therefore, DCPP should make reasonable efforts to involve parents in a child’s education plan and experience in appropriate cases.
Foster parents should be informed about a child’s educational history and needs, school rules, and academic expectations and closely monitor the child’s academic performance while the child is living in the foster home. A foster parent’s duty is to provide a supportive and healthy home environment. In addition, foster parents should understand the legal process to participate in education planning and decisions, to obtain education services, and to challenge school district decisions when required.
In cases where a parent or foster parent cannot or will not be involved in a child’s education, the school district should appoint a trained education surrogate within 30 days of being notified that the child does not have a parent to make education decisions. A state employee, including a school district employee, cannot serve as a surrogate parent. If the district fails to appoint a surrogate, a family court judge can appoint a surrogate.
While surrogates do review a child’s education records and receive training relevant to special education process and rights, they are required only to appear at an identification meeting to sign a consent for evaluations and to participate in an annual meeting to develop the child’s individualized education program (IEP). The surrogate is not responsible for ongoing monitoring of the child’s progress.
The Role of Other Professionals
A family court judge, the attorney who represents the child (law guardian), or the court volunteer assigned to the case can promote a child’s education through monitoring a child’s progress and advocating for the child’s education rights. A judge can require DCPP and/or a child’s law guardian to report regularly on a child’s educational progress or enter an order that outlines the steps to be taken to try to compel a school district to comply with education laws. A judge can also order that DCPP do what is required to support a child’s education and appoint an education surrogate. Family court judges have entered orders requiring school districts to comply with New Jersey education laws.
Court Appointed Special Advocates (CASA) are specially trained volunteers who are assigned to advocate on behalf of children living in foster care. Although not assigned to every case, CASA volunteers can monitor a child’s educational progress and can be a facilitator between the school district, foster parent, DCPP, law guardian, and CSOC. Child Placement Review (CPR) Boards involve trained volunteers who review all cases 45 days after the child enters foster care. Board members can ask questions about the child’s educational needs and highlight concerns for the judge.
Challenges for Children in Foster Care
A foster parent who does not have sufficient information regarding a child’s disability or education history and basic information regarding the school law process cannot effectively advocate for the child. A parent or foster parent who does not have enough information from the school regarding the child’s education status or problems cannot meaningfully participate at school meetings, to the child’s detriment.
The question of who can sign consents for the child and who should receive information about the child’s education is often not clear for school and state agency staff. The result can be that no one is acting as the child’s “parent.” Confusion regarding roles and lack of collaboration can lead to the absence of valuable participants at school meetings to create an appropriate education program.
While most children living in foster care will continue in their current schools, some children change schools. School district misconceptions about the right to enrollment and attendance can be particularly harsh for children with disabilities living in foster care, as this further delays necessary educational services.
A child who changes school mid-year sometimes faces problems in having credits accepted by the new district or challenges in being promoted to the next grade and/or graduating on time. A child whose interests and abilities are overlooked can have more difficulty transitioning into the new school.
Strategies and Solutions
When a child enters foster care, school records should be reviewed by a knowledgeable person to assess the child’s education needs, including whether CST evaluations might be needed and/or whether an existing IEP or 504 plan should be reviewed. The request for a CST evaluation can come from a parent, foster parent, DCPP caseworker, or CASA, but only a parent can sign the consents for evaluations. To avoid delays by the new school district in implementing an appropriate education plan, DCPP staff members can acquire parental consent to obtain school records from the previous school or, if possible, provide the new district with the most recent IEP or 504 plan and/or recent evaluation records at the time of enrollment.
DCPP staff member must ensure that the parent or foster parent will act in the role of “parent” for the purposes of ensuring that the child’s educational needs are met and, if neither is able to do so, notify the school that a surrogate needs to be appointed. When a surrogate is required, the DCPP caseworker and/or law guardian should make it a priority to identify potential surrogates through a child’s family members or friends and enlist the help of the judge, if necessary, to have a surrogate appointed. A surrogate who knows the child is likely to be more committed to ongoing monitoring.
When a child who is classified for special education enters foster care, an IEP meeting should be requested. This request can come from a DCPP caseworker, parent, or foster parent. Participants should include teachers, the school psychologist, the learning disability teacher consultant, a social worker, the supervisor of special education, other relevant child study team members, a birth parent (if appropriate), a foster parent, and the child (if appropriate). In addition, other relevant adults or professionals who can add to the meeting should be invited, such as CSOC/CMO staff, a DCPP caseworker, and a CASA if one is assigned to the case. The purpose of this meeting, other than to review or discuss records, is to clarify roles and responsibilities, to share essential information, including pertinent history and evaluations, to ask questions about processes, and to identify known or suspected education issues.
This initial meeting should result in a team effort with a checklist of education goals, including how to include the child in school activities and extracurricular activities and steps to be taken and by whom. Students with disabilities are entitled to transition services in high school to prepare them for life after high school. Special considerations and planning are required for students who may be aging out of foster care.
Follow-up meetings should be scheduled throughout the year until it is clear that the child’s educational needs and goals are being met. The DCPP caseworker should keep the law guardian and other relevant state agency representatives informed regarding education proposals and plans.
When a student is not progressing or doing worse, the parent should ask for a CST meeting to discuss the problems. If a child study team case manager or other school staff member ignores a parent’s request, the parent should contact the district director of special education. If the parent’s request is denied, an attorney or advocate knowledgeable in special education law should be contacted for assistance. The DCPP caseworker should report the results of all CST meetings to the court and keep all informed regarding any disputes that need resolution to advance the child’s educational goals.
Advocates for Children of New Jersey’s Kidlaw Resource Center provide legal assistance to parents and their children regarding education rights. Guides and fact sheets regarding education and child welfare laws are available for distribution and can be downloaded from our website: www.acnj.org. For assistance regarding education issues, contact Nina Peckman, Esq. at npeckman@acnj.org or 973-643-3876.
