December 01, 2017

An Attorney's Guide to Early Childhood Education

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Early childhood is a time of intense growth and development in all areas, including rapid changes in motor development, cognition, and emotions. During these years, children’s brains develop their capacity for trust, empathy, problem-solving, self-control, focused learning, and so much more. Nurturing and secure early environments are essential to healthy development and learning. 

All very young children from birth to five need positive early learning experiences to foster their intellectual, social, and emotional development and to lay the foundation for later school success. Infants and toddlers who have been abuse or neglected need additional supports to promote their health, growth, and development and overcome adverse outcomes. Focused interventions can increase positive developmental outcomes. As an attorney working with children and families in the child welfare system, it is helpful to understand what early childhood education supports are available for very young children. 


Recognizing the importance of early childhood education, amendments to the Child Abuse and Prevention Treatment Act (CAPTA) required states to develop policies and procedures for referral of a child under age three who is involved in a substantiated case of abuse or neglect to Part C services under the Individuals with Disabilities Education Act (IDEA). Later IDEA amendments contained similar language, providing an opportunity to get developmental screening for infants and toddlers who have been abused or neglected. The Children’s Bureau clarified through its Child Welfare Policy Manual that CAPTA and IDEA requirements provide discretion to states to develop a screening process to determine if a Part C referral is warranted and do not automatically entitle a child to a Part C services evaluation.1

Part C was established to address an “urgent and substantial need” and designed to:

  • enhance the development of infants and toddlers with disabilities;
  • reduce education costs by reducing the need for special education through early intervention services; and
  • enhance the capacity of families to meet their children’s needs.

For eligible children, Part C services may include:

  • Family training, counseling, and home visits
  • Nursing, health, and nutrition services
  • Service coordination
  • Medical services for diagnostic or evaluation purposes
  • Occupational and physical therapy
  • Psychological and social work services
  • Vision, orientation, and mobility services
  • Speech-language pathology services
  • Transportation services
  • Age-appropriate special education instruction

Young children placed in foster care should be immediately screened for mental health issues and developmental delays or disorders. Children’s emotional and developmental health status should be periodically reassessed during placement because their status and needs can change rapidly at young ages and under adverse circumstances.

Medicaid and EPSDT

Most children in foster care can receive Medicaid, a program jointly funded by the federal and state governments and administered by states under federal guidelines, because program requirements are tied to eligibility for state reimbursement for foster care expenses under Title IV-E of the Social Security Act. While there are both mandatory and optional services provided to adults, the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) program requires that states provide a comprehensive set of services to children under 21 enrolled in Medicaid. EPSDT services include periodic screenings at established age-appropriate intervals for mental and physical health issues, and additional screenings for a suspected problem. 

Early Care and Education2

Key Features. While Part C and EPSDT can provide interventions based on screenings and assessments, quality early care and education programs can provide supportive environments to children in foster care. Such programs may include nursery schools, prekindergarten programs, family child care homes, preschools, Head Start and Early Head Start, and care provided by families, friends and neighbors. Care providers include private nonprofit agencies, for-profit companies, faith-based organizations, public schools, and in-home providers.

Early care and education programs and services for children in foster care can:

  • provide an enrichment experience for the child that allows consistent peer relationships and sensory and cognitive support;
  • provide child care so foster parents or relative caregivers can work outside the home;
  • provide respite care to allow caregivers time to care for themselves; 
  • provide a neutral professional setting for visitation with parent coaching.

Benefits. Benefits of early care and education include helping children who have been abused or neglected develop essential early relationships that promote positive social development. High-quality programs can also support foster, kinship, and birth parents by connecting them to other support systems or other parents who can offer advice and mentoring. 

Comprehensive early childhood programs like Early Head Start combine home visitation and comprehensive center-based services that also provide opportunities for the parent to learn and model positive parenting strategies. Such programs provide young children with opportunities for enhanced social-emotional health and development. In addition, therapeutic child care programs that address issues faced by abused and neglected children can ensure they receive specialized treatment and attention. A recent study shows that children in a national child welfare sample who received Head Start were 93% less likely to be placed in foster care than children who did not receive early care and education services.3

Issues to Watch. While the benefits are clear, several issues to examine more closely include quality of the program and staff training and turnover. Placing a very young child in a low or poor-quality child care situation may cause further harm to a child already suffering from developmental or mental health issues. Quality of the program is also often tied to the quality of the teachers who staff the program. Without adequate training, children will not receive the quality experiences that promote their healthy development. Additionally, high rates of staff turnover, even among highly trained and qualified staff, can disrupt caring relationships that can affect development of language and social skills and secure attachments to child care providers. The same study noting the benefits of Head Start also found that experiencing multiple types of early care and education is a risk factor for foster placement and recommends routine assessment of the early care and education service history and needs of families with young children who come into contact with child welfare.

Innovative State Approaches

Several jurisdictions have developed early childhood approaches to support healthy development and educational well-being:

Early childhood development assessments. The District of Columbia has refined its process for conducting developmental assessments for very young children, with responses based on the child’s specific age and potential interactions with DC Public Schools, including the DCPS Early Stages program. After an initial Developmental Quick Screen, a comprehensive assessment is conducted within 30 days using validated tools5 followed by evaluations by Part C agencies and determinations of eligibility for special education services.6

Early literacy programs. As part of the Safe Babies Court Team Approach in Des Moines, Iowa, Judge Constance Cohen encouraged evidence-based practices grounded in scientific research. By applying science to judicial decision making to engage families in building a child’s ability to absorb language, Judge Cohen’s early literacy approach encourages parents to read, talk, and sing with their babies and reinforces the need to interact positively with their child.7 The 2-4-2 Book Project provides one copy of a book to the caregiver and a second to the parent and encourages a routine, daily call to enable the parent to read with the child and build a stronger relationship.8 The District of Columbia has also participated in a “Readers are Leaders” early literacy program for its children in care by providing information about the importance of family reading that begins at birth and availability of free community programs for families.

Subsidized child care. California’s effort to recruit and retain foster parents includes a recognition that subsidized child care and avoiding child care gaps play important roles in their decisions. The state’s Foster Parent Child Care Program provides subsidized child care to foster parents,9 while a new Emergency Child Care Bridge Program aims to support new foster and resource families by providing help in finding and affording child care for the first six months a child is in their care. The program provides financial resources to “bridge” the gap for affordable child care for foster parents and increases access to immediate child care for children ages 0-5 by providing vouchers as well as offering a child care navigator.10


The science of early brain development is constantly, and rapidly, expanding. As evidence about the effectiveness of early learning interventions expands, children in foster care can benefit from approaches shown to minimize or even reverse the effects of difficult early childhood experiences.

Eva J. Klain, JD, is director of child and adolescent health at the ABA Center on Children and the Law.

Evaluating Early Care and Education Settings 

  • Can the foster parent stay home with the child?
  • If not, what type of program would best meet the child’s needs?
  • How many hours per day and days per week should the child attend the early childhood education program?
  • Will the child be assigned to one specific primary teacher who is present most of the child’s day in care?
  • Does the program provide in-home services where the child and parent receive individual attention and guidance?
  • Can the child care program be used as a location for visits between noncustodial parents and their young children?
  • Who pays for the care?

Source: ABA Center on Children and the Law, National Council of Juvenile and Family Court Judges, and Zero to Three. Healthy Beginnings, Healthy Futures: A Judge’s Guide, 2009. 


1. Children’s Bureau, Administration of Children and Families. Child Welfare Policy Manual, 2.1I CAPTA, Assurances and Requirements, Referrals to IDEA, Part C.

2. ABA Center on Children and the Law, National Council of Juvenile and Family Court Judges, and Zero to Three. Healthy Beginnings, Healthy Futures: A Judge’s Guide, 2009. 

3. Klein, Sacha, Lauren Fires & Mary M. Emmons. “Early Care and Education Arrangements and Young Children’s Risk of Foster Placement: Findings from a National Child Welfare Sample.” Children and Youth Services Review, September 2017.

4. Ibid.

5. Including the Ages & Stages Questionnaire (ASQ-3) or if the foster or biological parents are not available, the Parents’ Evaluation of Developmental Status (PEDS) online assessment is completed.

6. District of Columbia Child and Family Services Agency, Process for Conducting Developmental Assessments for Children Ages 0-5: Out of Home.

7. Cohen, Constance. “Informed Compassion: The Safe Babies Court Team Approach to Serving Infants, Toddlers, and Their Families in Dependency Cases.” Drake Law Review, April 12, 2016. 

8. Constance, Cohen. “Why Read to Babies?

9. Cal. Welf. & Inst. Code § 11410.

10. Children Now. “Legislature Helps Foster Parents Bridge the Child Care Gap." June 16, 2017.