New California Court Rules Protect Foster Children’s Educational Rights
By Betsy Wang
In January 2008, the Judicial Council of California adopted a new set of court rules in response to rising awareness of foster youth’s educational needs. While California has long recognized that educational success is often vital to foster children’s long-term success, these rules make education a priority at each and every juvenile court hearing. The new rules also provide a vehicle for the courts to apply greater pressure on social workers, attorneys, school personnel, and others working in child welfare to implement legislation designed to protect foster youth’s educational rights.
Several California counties are at various stages of implementing the new court rules; however, their effects are already being felt across the state. For example, the Administrative Office of the Courts has done extensive training of foster youth liaisons and other educators since December 2007. San Diego County has formed a Juvenile Court Education Committee, distributed new informational brochures, and designed case management systems to track foster youth’s educational progress. In other counties, steps are being taken to modify forms and processes to comply with the new court rules. As training and awareness grows, the new rules provide a great opportunity for counties to improve the educational outcomes for foster children.
The Need for New Court Rules
Children in foster care face a myriad of challenges. Many have disabilities caused by abuse, neglect, and separation from their families and communities. As a result, they often have even greater educational needs than other students. In addition, foster youth are frequently shuttled from placement to placement, causing them to fall far behind in school. Sadly, for children in care, school may be one of the few stable factors in their lives, and earning a high school diploma can make a tangible, long-lasting difference. Despite the benefits that a quality education can provide to foster youth, education has historically taken a back seat to family reunification and permanency planning, which are often viewed as more pressing concerns. However, in the past decade, lawmakers and child welfare professionals have begun to place greater emphasis on improving foster youth’s educational outcomes. The adoption of new court rules is another critical step in California’s ongoing efforts to ensure that foster youth have access to the educational services they are legally entitled to.
In 2003, California passed Assembly Bill 490, which codifies a set of educational rights for foster youth. AB 490 includes provisions for increasing school stability, ensuring the timely transfer of school records when a student changes schools, and allowing students to receive partial credits for class work already completed (at a previous school). It also requires educators, school personnel, advocates, and juvenile court officers to work together and communicate more effectively to meet the educational needs of children in foster care. Many foster youth also qualify to receive special education and related services through the federal Individuals with Disabilities Education Act (IDEA), which was re-authorized in 2004 and guarantees every child a free, appropriate public education.
After the passage of AB 490 and new federal regulations implementing IDEA, however, child advocates raised concerns that juvenile law hearings did not always provide for adequate court oversight of foster youth’s educational rights. Specifically, judges often lacked information necessary to make informed decisions about a foster youth’s educational needs. For example, it was often unclear who was responsible for a child’s educational rights, and safeguards were not in place for monitoring children’s school placements when they were moved to a new home. In addition, because many foster youth do not have someone to help them navigate an increasingly complex school system, gaining access to educational services mandated under AB 490 and IDEA has been a significant hurdle. Finally, child advocates noted the inconsistency among counties in their application of AB 490.
In 2006, the Family and Juvenile Law Advisory Committee of the California Judicial Council reviewed the concerns raised by these child advocates and began drafting new rules. Under the California Constitution, the Judicial Council is authorized to adopt rules regulating court administration, practice, and procedure which are not inconsistent with California law.1 After the Family and Juvenile Law Advisory Committee submitted its recommendation in support of the new rules, the Judicial Council subsequently adopted the changes on October 26, 2007 and the new rules became effective January 1, 2008.
Overview of the New Court Rules
The new rules not only raise awareness of foster youth’s educational needs, but also create the infrastructure necessary to ensure these needs are being met. Specifically, the new court rules focus on several important objectives:
Finding a Responsible Educational Decision-maker
First, the rules ensure that a reliable and informed adult is in charge of making important educational decisions for foster youth. Youth in care need counselors and school advocates who will act in their best interests, increasing the odds that youth will complete their education. Under the law, the court may temporarily limit a parent or guardian’s right to make educational decisions for a child if he or she is not meeting the child’s educational needs.2 The new rules seek to clarify and streamline the procedures for transferring educational rights to other adults when this occurs.
The amended rules use the term “educational representative” to refer to the adult who holds educational rights for a foster child when the parent or guardian’s rights have been limited by the court.3 The revised rules clarify the educational representative’s role and responsibilities, which include representing the child in, providing consent for, and making decisions regarding all matters related to the child’s general and special education.4 They also create a new form (JV-537) for the representative to explain the child’s educational needs and provide important feedback to the court.5 In addition, the rules provide that the educational representative has the right to notice of court hearings affecting the child’s education, and to be informed about available resources on relevant education laws.6
California law provides that if the court is unable to locate a responsible adult to serve as an educational representative and the child is or may be eligible for special education services, it must refer the child to the local educational agency (LEA) for appointment of a surrogate parent.7 The surrogate parent is authorized to make all decisions relating to special education. The new rules ensure more timely compliance and improved coordination of this law by specifying that the updated referral form must be served on the LEA within seven days after the court’s order. The new rules further require that the LEA must make reasonable efforts to appoint a surrogate parent within 30 days, and report back to the court within seven days after a surrogate parent has been appointed.8 If the LEA cannot locate a surrogate parent within 30 days, it must notify the court within seven days and explain its continuing efforts to find a surrogate parent.
New Hearing Procedures to Protect Educational Rights
A second objective of the new rules is to revise hearing procedures in order to better protect the educational rights of all children before the court. Under the new rules, the court must make certain educational determinations at every hearing. For example, in initial hearings, the court is required to determine who holds the educational rights for the child, whether the child is attending his or her school of origin, and the appropriateness of the student’s placement.9 At disposition and subsequent hearings, the court must also determine the child’s educational needs, identify a plan for meeting those needs, determine if those needs are being met, specify who holds educational rights, and direct the rights-holder to take action consistent with the plan.10 Additionally, the court has the duty to ensure that the social worker or probation officer provides certain information in their reports to the court about the child’s education, such as the child’s educational needs, services, assessments, or recommendations.11 If a case is continued or the court orders a stay of jurisdiction, the child must continue to receive all services, with no interruption in the student’s education.12 These procedures put in place important safeguards to guarantee that the court is apprised of foster youth’s educational needs and able to determine whether those needs are being met at each hearing.
Monitoring Changes in School Placement
Lastly, the new rules strengthen the court’s role in monitoring proposed changes in the child’s school placement. On average, children in foster care live in two to three different places each year.13 When they move, they are often forced to change schools. Studies have shown that frequent school changes negatively affect students’ educational progress and graduation rates.14 In addition, school may be one of the only places where children in care have had stability and continuity. Removal from their schools of origin can create numerous problems for foster youth, from general feelings of instability to harmful interruptions and delays in a student’s education. The new rules seek to address this issue by requiring the court to consider specific factors, such as input from the educational representative, when determining whether a proposed placement change is in the child’s best interests.15
The new rules also require the court to ensure that the social worker or probation officer notify all appropriate parties of any change in placement within 24 hours of a decision to remove a child from his or her school of origin. If the child has a disability and Individual Education Plan (IEP), notice must be provided to both the old and new LEA at least 10 days prior to the child’s move.16 In addition, under the revised rules, a child’s attorney, the person holding educational rights, or the court itself, may request a hearing to consider the proposed move by filing a form with the court.17 Within two days of the filing, the educational liaison must provide a report stating the reason for the proposed change and how it serves the best interests of the child.18 These rules help minimize disruptive transfers.
Promising Practices: Implementing the New Rules
The positive effects of the new rules are being felt across California as the Judicial Council, counties, LEA’s, and child welfare professionals take promising steps toward their implementation. Examples of some ongoing efforts are provided below:
The Administrative Office of the Courts:
The Administrative Office of the Courts, the staff agency of the Judicial Council, is providing extensive training on the new rules. Through these trainings, court personnel and those working with foster youth are becoming aware of the ways in which they can help carry out the underlying goal of the court rules: to create educational stability and accountability in foster youth’s lives. Examples of actions that the Administrative Office of the Courts has taken to implement the new rules include:
- Training judges, attorneys, CASA’s, policy advocates, social workers, and probation officers on the new rules at Beyond the Bench, an annual foster care and juvenile justice conference;
- Conducting multi-disciplinary trainings for individual counties that requested instruction on implementing the new rules;
- Conducting tailored trainings for Juvenile Hall Principals and Superintendents on the revised rules and forms;
- Holding a workshop on the amended procedures for school foster youth liaisons at the Foster Youth Education Summit in May 2008, at which 48 counties were represented.
San Diego County:
San Diego County has been a leader on foster youth educational issues. It has also been particularly proactive in implementing the new rules through several promising initiatives:
- A multi-disciplinary Juvenile Court Education Committee comprised of lawyers, educators, social workers, probation officers, group home representatives, CASA’s, and police, among others. Co-chaired by the San Diego Commission on Children, Youth, and Families and the San Diego County of Education, Foster Youth Services, the committee meets on a monthly basis to share concerns and discuss ways to enhance outcomes for foster children. A PowerPoint presentation of the committee’s objectives can be found at: www.abanet.org/child/…
- A web-based education case management system operated by the San Diego Office of Education’s Department of Foster Youth Services. The database consolidates the educational records of all children in group homes and FYA care into one system, allowing attorneys, social workers, and educators to conveniently view and monitor foster youth’s educational progress. It also includes other pertinent and up-to-date information such as immunization records.
- Informational brochure for education rights-holders. The brochure answers frequently asked questions, delineates the rights-holder’s duties and responsibilities, and highlights his or her rights.
- Every Hearing, Every Child, a booklet published by the Administrative Office of the Courts to assist courts and others with enforcing the rights of children in foster care.
Santa Clara County:
- Modification of its reporting forms to comply with the new rules of court.
- Upgrading its database system to correlate with the new provisions.
- An agreement (a process of being drafted) between the county office of education and child welfare agency to implement the new rules.
- A special form for social workers to notify school district liaisons and children’s attorneys of any potential school changes.
- A working group of division directors to facilitate discussion of foster youth’s educational needs and to improve the notification process between social workers and educators about foster youth’s placement changes.
- A new e-mail address/mailbox to consolidate and improve communication between Social Services and LEA’s. The new e-mail address receives all notifications from child welfare workers on any changes in placement.
The new court rules are the Judicial Council’s most recent response to concerns about the educational rights of children in foster care. The rules help to ensure greater court oversight of foster youth’s educational placements and progress by focusing on education at every court hearing. In addition, the rules promote collaboration among local educational agencies, social workers, court personnel, and other interested parties by stressing the importance of sharing information on the educational placements and progress of youth. Since the adoption of the rules in January 2008, various efforts have been made to carry out their provisions. Although the counties are at different stages of implementation, awareness of the new rules is spreading and promising practices are being developed by collaborative groups of foster care professionals across the state.
Betsy Wang was a Summer 2008 law clerk at NCYL, working on child welfare and education related issues. She is a dual degree candidate at Stanford Law School and Stanford University’s School of Education.
1. Cal. Const., art. VI, § 6.
2. See Rule 5.650(a) explaining Welfare and Institutions Code section 319(g).
3. Rules 5.502(13), 5.534(j).
4. Rule 5.650(f)
5. Rule 5.650(j)(2).
6. Rule 5.650(i).
7. Rule 5.650(d).
9. Rule 5.651(b)(1).
10. Rule 5.651(b)(2).
11. Rule 5.651(c).
12. Rule 5.651(d).
13. Blueprint for Change: Educational Success for Children in Foster Care. 2007 American Bar Association and Casey Family Programs, p.1, available at www.abanet.org/child/education .
15. Rule 5.651(f).
16. Rule 5.651(e)(1).
17. Rule 5.651(e)(2).