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 Act emphasizes the importance of remaining in the same school unless “remaining in such school is not in the best interests of the child.”[2] What is involved in making this determination?
The following guidance helps child welfare agencies make the best interest determination. It addresses who should be involved in the decision, factors to consider, and how to resolve disputes. Legal advocates must ensure that the child welfare agency meets its obligation to ensure school stability for children in care, and bring this issue to the attention of the dependency court.
Child Welfare Agency’s Duty to Assess the Child’s Best Interests
Child welfare agencies must document assurances of school stability in the child’s case plan. Fostering Connections requires that the state plan include “assurances that the [child welfare] agency has coordinated with appropriate local educational agencies… to ensure that the child remains in the school in which the child is enrolled at the time of placement” unless “remaining in such school is not in the best interests of the child…”[3]
A Program Instruction by the Administration for Children and Families (ACF) states it is the duty of the child welfare agency to make this best interests decision.[4]
The agency is well-positioned to make school stability decisions as it can assess non-educational factors such as safety, sibling placements, the child’s permanency goal, and the other components of the case plan. The agency also has the authority, capacity, and responsibility to collaborate with and gain information from multiple parties, including parents, children, schools, and the court in making these decisions.[5]
Seeking Input from Stakeholders
In making the initial best interests determination, child welfare agencies should consult (and perhaps in some instances defer to) other parties. These include the student, parent, and school staff who may know more than the child welfare agency about what is best for the child educationally. As the ACF Program Instruction explains:
We encourage the title IV-E agency to specify the parties other than the caseworker and the child’s parents who should participate in discussions or decisions related to the educational stability plan. For example, the agency could delineate the circumstances in which the youth, school personnel or education advocates, foster parents, the child’s attorney, guardian ad litem, and other persons involved in case planning for the child are a part of the educational stability planning process….We encourage the title IV-E agency to develop a standard and deliberate process for determining best interests for this provision, guiding who is responsible for decision-making, and properly documenting the steps taken to make the determination. (ACF Guidance, supra note 4, at 20.)
One key stakeholder to consult is the legally authorized education decision-maker. Unless someone else has been appointed by the court, or in some cases the school, a child’s education decision-maker is his or her parent. Engaging parents in a child’s education fosters the child-parent bond, which ultimately supports reunification. When a parent is unable or unwilling to make the decision in the best interests of the child, however, the law allows alternative decision makers. Because these decision makers are already working on behalf of the child’s educational interests, the child welfare agency should usually defer to their judgment.
Special Education Decision Makers: Every child in special education has a right under federal law to have a parent (which could be the foster parent) making decisions for him or her, or to have an education decision maker appointed by a court or a school district. This is a complex area of law. For details on the law defining who can play this role, see the for Foster Care and Education series of special education decision-making fact sheets.
General Education Decision Makers: Judges may also limit parental rights and appoint education decision makers for general education purposes. Sometimes the authority to do so arises implicitly from the judge’s authority to act in the best interests and for the safety and well-being of the child.
In other cases, state law explicitly grants this authority. For example, law allows the court to limit the parents’ rights to make education decisions for children adjudicated dependent. The court can then appoint an education decision maker known as a “responsible adult.”[6]
For a child eligible for special education, if the court is unable to appoint a responsible adult, the court may refer the child to the local educational agency for appointment of a surrogate parent for education decision-making purposes. The court is also authorized to make educational decisions for the child, with input from interested parties when there is no responsible adult, surrogate parent, or foster parent to do so. [7]
Each stakeholder participating in the school stability decision should be given key information about the law and the stakeholder’s role. He or she should also be given the guidelines and criteria by which the decision is made.
Best Interests Criteria
The entity making the school stability decision needs clear guidelines to help make the right choice. The Fostering Connections Program Guidance released by ACF lists the following examples of factors that may influence what school placement is in the child’s best interests: [8]
- the child’s preference to chance schools or remain in the same school;
- the safety of the child;
- the appropriateness of educational programs in the current school; and
- how each school serves or can serve the child’s needs, including special education and other interests.
Other factors not listed in the ACF guidance, but that can help guide the decision include:
- preferences of the child’s parent or education decision maker;
- expected length of the child’s current placement and the child’s permanency plan;
- number of schools the child has attended over the past few years and this year, and how the school transfers have affected the child emotionally, academically, and physically;
- how anxious the child is about upcoming moves and about being in out-of-home care;
- how each school can respond to the child’s academic strengths and needs;
- whether the timing of the school transfer would coincide with a logical juncture such as after testing, after an event that is significant to the child, or at the end of the school year;
- how changing schools would affect the student’s ability to earn full academic credit, participate in sports or other extracurricular activities, proceed to the next grade, or graduate on time;
- how the length of the commute to the school of origin would impact the child;
- schools the child’s siblings attend.[9]
NOTE: The Cost of Transportation Is NOT a Best Interests Factor
ACF guidance states the decision maker should not consider the cost of transportation when determining which school serves the child’s best interests.[10]
Resolving Disputes
Because the best interest determination can profoundly impact the child’s well-being, states will need clear dispute resolution processes to address disagreements about the school selection decision.
A dispute resolution system should, at minimum:
- Establish where the child goes to school pending the dispute resolution. In , for example, the child stays in his or her current school until the dispute is resolved.[11] This minimizes the number of moves a youth must make.
- Provide a written explanation to stakeholders – or at least to the education decision-maker for the youth.[12]
Conclusion
States and local jurisdictions need clear procedures for determining which school serves children’s best interests. Carefully developed school selection procedures ensure children attend schools in which they are most likely to succeed academically and socially. This promotes better educational outcomes, and ultimately better life outcomes, for youth in care.
This article was adapted from an issue brief prepared by the Legal Center for Foster Care and Education.
Endnotes
[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] Fostering Connections § 204(a)(1)(B); 42 U.S.C. § 675(1)(G)(ii).
[3] Ibid.
[4] 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, 19 (hereinafter “ACF Guidance”), available at www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2010/pi1011.htm.
[5] Before even reaching this decision, child welfare agencies must attempt to maintain children in placements in proximity to their original school. See Fostering Connections § 204(a)(1)(B); 41 U.S.C. § 674(1)(G)(ii).
[6] Welf. & Inst. Code § 361(a) (West 2007).
[7] Welf. & Inst. Code § 361(a)(5) (West 2007).
[8] ACF Guidance, 2010, 20.
[9] Adapted from for Foster Care and Education and the National Canter for Homeless Education, Best Practices in Homeless Education: School Selection for Students in Out-of-Home Care, Fall 2009, available at http://www.serve.org/nche/downloads/briefs/school_sel_in_care.pdf. This issue brief provides more information on the best interests determination and may be useful to readers.
[10] ACF Guidance, 2010, 20.
[11] See e.g., Cal. Educ. Code § 48853(c) (West 2006).
[12] See e.g., 42 U.S.C. § 11432(g)(3)(B)(ii); Cal. Educ. Code § 48853.5(d)(3) (West 2011).