chevron-down Created with Sketch Beta.
January 15, 2015 Articles

Courtroom Educational Advocacy for Children in Foster Care

By Kristin Kelly

Children in foster care need a solid education to help ensure a successful future. For the almost 400,000 children and youth involved in the foster care system, educational success can be a positive counterweight to their experiences of abuse, neglect, and separation. Unfortunately, research demonstrates that many students in foster care have very poor educational outcomes. See Nat'l Working Grp. on Foster Care, Research Highlights on Education and Foster Care (Jan. 2014). Foster youth often have low standardized test scores in reading and math; high levels of grade retention, discipline, and drop-out; and far lower high school and college graduation rates. One recent statewide study in California found that students in foster care performed worse than other vulnerable populations, including children with disabilities receiving special education, English Language Learners, and low income students. See WestEd, The Invisible Achievement Gap Report: Key Findings (2014). The achievement gap for students in foster care is real, and strong legal advocacy is essential to overcoming the many barriers to success that these children encounter.

Many children in foster care change schools frequently, both when they enter foster care and when their living placements change while in care. Unfortunately, these school changes often correspond with enrollment delays and the loss of earned credits in the new school districts. Students in foster care are disproportionately suspended or expelled from school and placed in restrictive school programs or schools located in residential settings. Despite their disproportionate need for special help such as special education, these students are often unidentified or underserved. Each of these problems is compounded by the lack of any legally authorized education decision maker or advocate due to the child's placement in foster care.

How Judges Can Assist with Educational Success
Judges have a unique and important role to play in the education of foster youth. Judges are required to address children's safety, permanency, and well-being needs—which of course includes education. Without clear direction from the courts, caseworkers and child service providers may not prioritize education issues or fully understand legal requirements. Agency staff and child advocates lack the court's authority to appoint an education decision maker or to make orders.

Judges should ask questions about a child's education at each hearing and should make sure that information about the child's education is included in court reports. Perhaps most important, the judge should ask the youth directly about the youth's education experience, goals, strengths, and challenges.

The court should ensure that an order is in place that clarifies who holds the education decision-making rights for the child (for both general and special education students), and the order should be comprehensive and specific. Of course, this person should generally be the child's parent(s), unless the court determines it is necessary to limit the parent's education decision-making rights. If the parents cannot retain their educational rights, this may require the appointment of a surrogate parent. The court order can also direct a party to pursue education issues in the school, such as requiring parties to pursue a referral for early intervention or special education services.

Judicial oversight is especially critical for school stability and continuity. The order should verify that the child's case plan includes a plan to ensure school stability and continuity, as required by federal law. When a living placement change is proposed, the court should consider whether the child should stay in the same school. Judges can order a party before the court to arrange and/or pay for transportation when needed for the child to remain in the same school and make sure that the agency is making school selection decisions in the child's best interest. If it is in the child's best interest to change schools, the judge needs to ensure that the child is immediately enrolled in a new school, with all school records transferred.

School stability, prompt school enrollment, and special help for eligible children with disabilities are all required by federal (and many state) laws. Judges are needed to ensure that the parties before the court and the multiple agencies that are often involved in the education and care of court-involved youth are making sure that these children receive these legal protections. Addressing education needs can also help achieve placement stability and permanency for youth in care. Children who are on track educationally, attending school regularly, and not having behavior problems at school can often return home more quickly and are more likely to find permanent foster or adoptive families.

How the Child's Representative Can Advocate for Education Needs
The child's attorney, guardian ad litem (GAL), or court-appointed special advocate (CASA) should report education information and issues to the court at every hearing. The lawyer or advocate should review the child's education records and should speak with the child about his or her education goals—and then should advocate for these goals (and the services needed to achieve these goals) with other parties and the court. Critical information should be gathered and shared with the judge such as the child's grades, attendance record, and whether the child is (or should be) receiving special education or other supportive services. The lawyer or advocate should also ensure that an educational decision maker is in place for the child.

The lawyer or advocate should work with agency staff to ensure that education is a priority for each child and that the child's case plan addresses school stability and continuity. The advocate should work with the caseworker to make sure that he or she obtains and includes required education information in the case plan, and that the caseworker collaborates effectively with the school on education stability and other school-related issues.

Model Jurisdictions
A number of states, including California, Colorado, New York, Oregon, and Pennsylvania, have adopted judicial rules or statutes that require judges to make education inquiries, findings, and orders. Pennsylvania adopted Rules of Juvenile Court Procedure that require juvenile courts to consider, make findings, and issue appropriate orders around education at each stage of the judicial process—from the initial shelter hearing to the permanency hearing. California passed a state law requiring juvenile courts to identify a child's education rights holder at each and every hearing. Cal. Welf. & Inst. Code § 726. The law also explains the requirements for being an education rights holder for a child in foster care. The corresponding court order clearly lays out the framework for limiting a parent's decision-making rights and appointing a new decision maker if necessary.

Publications on How to Advocate in the Courtroom
The National Association of Counsel for Children's (NACC) cornerstone publication, Child Welfare Law and Practice (the Red Book) is a go-to resource for lawyers seeking policy and practice advice. Among other critical topics, the Red Book includes a chapter on educational advocacy for children in foster care that provides a summary of relevant laws and links to additional resources.

The Blueprint for Change: Education Success for Children in Foster Care, written by the Legal Center for Foster Care and Education, is a framework for advocates seeking to promote positive education outcomes for children in foster care. There are eight goals for youth, with corresponding benchmarks that indicate progress. Following each goal, there are national, state, and local examples of policies, programs, or laws that promote the goals and benchmarks.

Tools and Training Materials for Judges and Attorneys
In 2008, the National Council of Juvenile and Family Court Judges (NCJFCJ) released Asking the Right Questions II: Judicial Checklists to Meet the Educational Needs of Children and Youth in Foster Care. Many states, including Arizona, Iowa, New Jersey, Ohio, Oregon, Texas, and Utah, as well as Washington, D.C., are using protocols and checklists to systematize their courts' review process.

Through a project known as "Kids in School Rule!" Hamilton County Job and Family Services developed an "Education Court Report" form. The Legal Center for Foster Care and Education has adapted this tool and created a template for other jurisdictions. (This document will open in your word processing software.)

The Legal Center for Foster Care and Education also developed a short school stability "Best Interest Determination Evaluation Form" to support jurisdictions in making the "best interest" determinations as required by the education components of the Fostering Connections Act. This checklist will help child welfare staff respond to courts' inquiries regarding how school stability decisions have been made for specific children.

The National Child Welfare Resource Center on Legal and Judicial Issues, together with the Legal Center for Foster Care and Education, developed a full-day curriculum around courtroom-based education advocacy for children in care. This curriculum is designed for judges, children's attorneys, GALs, child welfare agency attorneys, parents' attorneys, and anyone else interested in learning more about courtroom-based education advocacy for children in out-of-home care. It includes an overview of the laws related to the education needs of children in care, including special education. Also included are laws relating to young children and adolescents (including involving youth in their education planning and cases), and education stability and continuity. Additionally, it includes two mock courtroom activities, designed to improve participants' advocacy skills relating to education issues. This curriculum can be modified for various jurisdictions, audiences, and time available. If you are interested in training on courtroom education advocacy or have other technical assistance requests, please contact the Legal Center for Foster Care and Education.

How Courts Can Measure Progress on Foster Care and Education
Critical to improving education advocacy and outcomes for children in foster care is improved data collection and information sharing. To guide courts in identifying education measures to track through court automated systems, the National Center for State Courts worked collaboratively with organizations and experts from around the country to develop specific measures for education, detailed in Educational Well-Being: Court Outcome Measures for Children in Foster Care (2011). These measures can be used to identify the data elements that would help measure progress, as well as serve as a baseline to compare various interventions.

More Information
In 2007, three nationally respected advocates for the educational rights of children in foster care—the American Bar Association Center on Children and the Law, the Education Law Center, and the Juvenile Law Center—formed the Legal Center for Foster Care and Education. The Legal Center provides technical assistance and information on legal and policy matters affecting the education of children in the foster care system and advocates for reforms that will improve educational outcomes for these children.

Whether you are involved with the court (a judge, attorney, GAL, or CASA); a child welfare agency (a caseworker, social worker, investigator, supervisor, or administrator); a school (a teacher, guidance counselor, administrator, or social worker); or another kind of advocate for children in care, you can make a difference. The Legal Center for Foster Care and Education is here to help you.

  • Connect with us and other advocates from around the country and stay up-to-date by joining our listserv and following us on Twitter.

  • Access tools and resources about the wide variety of issues impacting education and foster care.

  • Search our database for tools and resources on particular topics or states.

Keywords: litigation, children's rights, foster care, education, special education, school stability, best interest

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Kristin Kelly – January 15, 2015