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.
Ensuring education stability for children in foster care is a goal of the education provisions of the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections).1 The best interest determination that a child should stay in the same school or move to a new one is the first step in ensuring school stability. Unless state law provides otherwise, the school has the ultimate responsibility to allow the child to stay or be enrolled elsewhere.
The July 2011 CLP offered guidance for child welfare agencies on making the best interest decision. This issue discusses the legislation, interagency collaborations, or other agreements needed to implement best interest decisions. Legal advocates must ensure the child welfare agency meets its obligation to provide school stability and continuity for children in care, and address it in court when necessary.
Staying in the Same School
Making the promise of Fostering Connections a reality depends on state legislation or guidance that clarifies how the process will work and requires school districts to keep children in the same school or enroll them promptly in a new district—whichever is in the children’s best interests. In many states, these laws will need to address existing school residency requirements. In some cases, they may also amend laws relating to school funding, to ensure school districts are properly paid when they educate youth who no longer live within their district or attendance areas.
- A 2010 Connecticut statute requires schools to keep a student in an out-of-home placement enrolled in the same school and to treat him or her as a resident when the child welfare agency finds remaining in that school is in the child’s best interests. The Connecticut law includes a presumption that it is in the child’s best interests to remain in his or her school of origin. The law requires the agency to provide written notice to all parties within three days of making the decision that the child should remain. As long as the child remains in out-of-home care, the school placement decision can be revisited any time.
The agency may remove a child from the school of origin if the child’s physical safety is in jeopardy. In these cases, the agency must notify the child’s attorney, parents, GAL and surrogate parent on the same day. Any party then has three business days to object. An administrative hearing must be held within three business days of any objection.2
- A 2010 New Jersey law creates a presumption that when the child welfare agency places a child in a resource family home, the child will continue to attend his or her current school.3 The law clarifies that the “district of residence” for a child placed in out-of-home care is the present district of residence of the family with whom the child lived before being placed with a resource family. 4 That district must pay the child’s tuition and transportation costs to the district in which he is placed.5 If the agency finds attending the current school does not serve the child’s best interests or that continued enrollment in that school would pose a significant and immediate danger to the child, the child may be immediately enrolled in the resource family’s school district.6 The school placement may be reconsidered and changed when in the child’s best interest.7
- A 2011 Virginia bill revises the Education Code to ensure a child “shall be allowed to continue to attend the school in which he was enrolled before the most recent foster care placement” when in the child’s best interests.8
- Texas’s Education Code provides that youth in grades 9 through 12 have the option to complete high school at the school they were enrolled in when placed in foster care, even if the placement is outside the attendance area for the school district where the foster family resides.9
- Even when no state law exists, positive collaborations between child welfare agencies and school districts can lead to positive outcomes. A future CLP issue will highlight how child welfare and education agencies can collaborate to support school stability for children in foster care.
Enrolling in a New School
Fostering Connections provides that, if remaining in the same school is not in the child’s best interests, the child welfare agency and the local educational agencies must ensure “immediate and appropriate enrollment” in a new school, with all of the educational records of the child provided to the school.10 ACF Guidance encourages child welfare agencies to work with their local educational agency to identify and address any barriers to “expeditious enrollment” and also “to consider further efforts that may be necessary to enroll children who must be moved across jurisdictions.”11 States should also clarify the roles of the education and child welfare systems. Because neither the legislation nor the guidance clearly define “immediate” or “appropriate,” state law and policy is key to meaningful implementation.
Ensuring Immediate Enrollment
State law and policy can clarify precisely how many days constitutes “immediate” enrollment. Ideally, these laws will define “immediate” to mean a child must be enrolled even in the absence of otherwise required records, and will also provide guidance.
- In March 2009, Texas amended both its Family Code and Education Code to ensure the prompt enrollment of all children in out-of-home care. Under these new laws, a caseworker must enroll a child in school “no later than the third school day after the court order is rendered to remove the child from the home and place the child in DFPS conservatorship.”12
- In Virginia, joint policy guidance from the state’s Departments of Social Services and Education defines “immediate” as “no later than beginning of next school day after presentment for enrollment.” Presentment for enrollment occurs when the person enrolling the child has appeared at the new school and presented the required information. If “despite all reasonable efforts” school officials are unable to enroll the child on the next school day, they must do so on the following day and document the reasons for delay. The guidance requires that schools enroll children in care even if they lack documents required for enrollment. The state created a form entitled “Immediate Enrollment of Child in Foster Care Form” which the child welfare case worker submits to the school. Using the form, the person enrolling the student certifies to the best of his/her knowledge the student’s age and that the student is in good health, free from communicable diseases, and makes other certifications, thereby assuring that the student seeking to enroll meets the minimum requirements for enrollment.13
- In Delaware, state and local child welfare and education agencies entered into a Memorandum of Understanding in December 2008 providing that school districts must enroll a child in foster care within two school days of referral in a new school.14 The school district must enroll the child even if the child welfare agency is unable to produce records, or the sending school has not yet transferred records such as previous academic records, medical records, proof of residency if all parties (child, school, parent/legal guardian/relative caregiver, guardian ad litem, CASA, and agency staff) agree it is in the best interest of the child to change schools using the McKinney-Vento best interest standard.15
Defining “Appropriate” Enrollment
In determining whether a child is “appropriately” enrolled, states should consider not only whether the child has been admitted to the school, but also whether his or her educational needs are actually being met. Some factors to consider include whether the child is placed in the proper grade and classes, including general, special, advanced, or remedial education classes; whether the new school is awarding credit for work the child completed at another school, including full and partial credits; whether the child has been given the right to participate in all academic or extracurricular programs offered by the school and, when necessary, been given an exception from the normal timelines or program capacity rules.
- In Virginia, joint policy guidance notes that “enrollment” in this context “means the child is attending classes and participating fully in school activities.”16
Easing Transitions between Schools
Under Fostering Connections, state education agencies must ensure state and local enrollment rules (e.g., requiring proof of immunization or residency) do not hinder a child’s school enrollment. In some states, legislation or agreements may need to address residency requirements, enrollment documentation requirements, and deadlines for special classes and extracurricular activities.
Although students must not be prevented from enrolling in school because of missing records, it is important to make sure prior education records are promptly available to the new school district. Fostering Connections requires the child’s case plan to include assurances by the child welfare agency and the local education agency that the child’s records have been provided to the school immediately upon school enrollment. State legislation or guidance can clarify the process and timelines for records transfers. Additionally, the ACF Guidance recognizes that further support may be necessary or helpful to such transfers, citing as an example creating education “passports”—education files for each child including all enrollment documents, which can follow the child from school to school.17 States will need to consider what other supports or services will ensure prompt enrollment.
- In May 2007, Texas amended its Education Code to provide that a school district must enroll a child without a birth certificate, other proof of identity, or a copy of the records from the last school attended if the child is in DFPS conservatorship. The caseworker then has 30 days to provide the required records. If a child is transferring from another school district, the caseworker provides the new school with the name and address of the original school to facilitate prompt transfer. 18
- A Connecticut law enacted in June 2010 requires the school of origin to transmit all essential education records, including special education records, and documents needed to determine class placement and appropriate educational services, within one business day of receiving notice of the Department of Children and Families’ decision to change the child’s school placement.19
- In Virginia, joint policy guidance from the state’s Departments of Social Services and Education creates a form allowing the case worker to provide information to ensure a smooth transition and educational continuity for the child, including noting whether the child has an IEP and/or 504 plan, the name of the last school attended, and who the parent for special education purposes is. Within 30 days, the child welfare agency must obtain and give to the school any documents normally required for enrollment missing when the student first enrolled. Additionally, both schools must expedite the transfer of all the student’s records.20
- In December 2008, child welfare and education agencies in Delaware entered into a Memorandum of Understanding providing that the school district must enroll the child even if the child welfare agency cannot produce records, or the sending school has not yet transferred records such as previous academic records, medical records, proof of residency if all parties (child, school, parent/legal guardian/relative caregiver, guardian ad litem, CASA, and child welfare agency staff) agree it is in the best interest of the child to change schools using the McKinney-Vento best interest standard. School districts must also transfer school and medical records from a sending school immediately to a new school for a child in foster care who is transferring schools.21
Through legislation and policy guidance, states can establish clear mandates on the education system and can further develop the positive collaborations between child welfare and education agencies to meet the needs of youth in their care.
This article was adapted from an issue brief prepared by the Legal Center for Foster Care and Education (www.abanet.org/child/education). View the full brief and others in the series at www.americanbar.org/groups/child_law/projects_initiatives/education/state_implementation_toolkit.html
1 Fostering Connections to Success and Increasing Adoptions Act of 2008 (hereinafter “Fostering Connections”), Pub. L. 110-351, 122 Stat. 3949 (codified as amended in scattered sections of 42 U.S.C.).
2 Conn. Gen. Stat. Ann. § 17a-16a(b)(1) (West 2010); Conn. Gen. Stat. Ann. § 17a-16a (b)(3)(A-C) (West 2010).
3 N.J. Stat. Ann. § 30:4C-26b(a) (West 2010).
4 N.J. Stat. Ann. § 30:4C-26b(h) (West 2010).
6 N.J. Stat. Ann. § 30:4C-26b(b) (West 2010).
7 N.J. Stat. Ann. § 30:4C-26b(e)(2) (West 2010).
8 2011 Virginia Laws Ch. 154 (S.B. 1038) (amending Va. Code Ann. §§ 16.1-281 and 22.1-3.4, and adding § 63.2-900.3).
9 Tex. Educ. Code Ann. § 25.001(f), (g) (Vernon 2007).
10 Fostering Connections § 204(a)(1); 42 U.S.C. § 675(1)(G)(ii).
11 U.S. Department of Health and Human Services. Administration for Children and Families. Guidance on Fostering Connections to Success and Increasing Adoptions Act of 2008, July 9, 2010, 18-19 (hereinafter “ACF Guidance”), available at www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2010/pi1011.htm.
12 Texas Department of Family and Protective Services. CPS Handbook, March 2009, 4310, available at www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_4300.jsp.
See also Tex. Fam. Code Ann. § 264.115.
13 Virginia Department of Education and Virginia Department of Social Services. Joint Guidance on School Placement for Children in Foster Care, Dec. 2, 2010, 7 (hereinafter “Va. Joint Guidance”), available at www.dss.virginia.gov/family/fc/school_placement.pdf; see also Virginia Department of Education and Virginia Department of Social Services. “Best Interest Determination for Foster Care School Placement Form,” 2010, available at http://www.dss.virginia.gov/files/division/dfs/fc/forms/032-04-0067-00-eng.doc.
14 Memorandum of Understanding between the Dept of Education and the Department of Services for Children, Youth, and their Families, Dec.16, 2008, 14 (hereinafter “Del. MOU”), available at www.doe.k12.de.us/DDOEDSCYFMOU.pdf.
15 Ibid., 15.
16 Va. Joint Guidance, 2010, 7.
17 ACF Guidance, 2010, 18-19.
18 Tex. Educ. Code Ann.§ 25.002(g) (Vernon 2007).
19 Conn. Gen. Stat. Ann. § 17a-16a(c)(2) (West 2010).
20 Va. Joint Guidance, 2010, 7.
21 Del. MOU, 2008, 15-16.