Foster Children and the IDEA: The Fox No Longer Guarding the Henhouse?

• Author: Rebekah Gleason Hope
• Pages: 349-388

Rebekah Gleason Hope is an Associate Professor at Florida Coastal School of Law. I want to thank Julia Halloran McLaughlin for countless hours of proofing, editing and general support and encouragement throughout the process of writing this Article. I would also like to thank Sarah Koren, Cara Chambers, Laura Beockman Cauley, Cynthia Irvin, Ericka Curran, Dustin Rynder, Dr. JoAnn Hoza, and Megan Blamble for the input and insight each gave me in their roles as either an educational attorney or surrogate parent. This Article was inspired by work I have been doing with Duval County Circuit Judge Karen K. Cole, Dr. Laura Bailet, Judge Waddell Wallace as well as other dedicated professionals within the special education community in implementing a pilot project of judicially appointed surrogate parents. The project continues to work through some growing pains, but by and large has had a positive effect on many children's educations that would otherwise have fallen between the cracks. Additionally, I would like to thank Elizabeth Eklund and Jennifer Sharp for the research that they have done to make this Article possible.

Page 349

Introduction

The Individuals with Disabilities Education Act (IDEA) creates a complex bundle of rights for the parents of children with disabilities in an effort to provide each eligible child with a free appropriate public education (FAPE). Children in the dependency system, commonly referred to as foster children, also require a free appropriate public education when they have disabilities that affect their learning, but they have no one to advocate for them or assist them in securing an appropriate educational program. They need a surrogate to take the place of the parents who are unable to fill that role. The IDEA has always provided a mechanism for the child's school system to appoint an educational surrogate parent, but the 2004 reauthorization of the Act goes further in protecting the rights of children with disabilities by allowing dependency court judges the power to appoint them as well. This change could lead to much more effective protection of disabled foster children and their educational rights.

One case from Florida known to the author shows the potential benefit of allowing dependency court judges to appoint educational surrogates. Nancy has been in the dependency system for five years. At the age of seventeen, she cannot read or write competently in either her native language of Spanish or English, which has been her primary language for much of her school age Page 350 years. The school system held a number of meetings about Nancy, and on at least one occasion, evaluations were requested by her individualized education program (IEP) team, but none were completed. Nancy was clearly in danger of aging out of the foster care system without any of the basic necessary academic skills needed for independent living. Even more frustrating was the fact that she was gravely aware of her academic weaknesses and desperately wanted services to help her learn.

The judge overseeing her dependency case recognized that something was going terribly wrong in her education and had heard of the provision under the IDEA allowing him to appoint a surrogate parent to represent her in educational matters. He appointed a surrogate parent who quickly requested another meeting to begin the evaluation process. Her surrogate parent signed the appropriate forms, and when the school system attempted to stall the process, her surrogate parent held the school responsible for actually starting the evaluation process rather than let Nancy continue in the frustrating cycle that she had been subject to for so long.

Despite her changes in home placement in the past year, her educational placement and program have remained consistent and positive. There is obviously no guarantee that Nancy will avoid homelessness upon aging out of the group home, but with improved academic support and skills, she will at least have a much better chance.

While children in the dependency system require consistency, stability, and support, they often find themselves in a constantly changing world, with little or no consistent support. For their own safety, they are removed from the only world they have known, for better or worse, and placed into a new world, foster care, hopefully for the better. Unfortunately, however, that world is not always hospitable and is rarely stable.

In the course of locating a safe haven for these children, everything else, including education, gets pushed aside. This is partly due to the immediate need to ensure the child's safety and partly due to the inexperience most case workers have with the bureaucracy of the school system. Many case workers trust that the school system will take care of the child's education as they tend to the home placement. This reliance is misplaced because the initial home placement, and every home placement change thereafter, greatly and directly impacts the education of the children they are trying to help. The impact is even greater on those children who require special education services. With each school change, the receiving school will often not have records for the child. Therefore, it will not know of the child's educational needs. For children with disabilities, this means weeks, sometimes months Page 351 without services. For children who require special services but whose needs are not yet identified, the cycle of repeated attempts to remediate their learning before they are properly evaluated substantially delays their educational progress. It has a particularly crippling effect for children who change schools so often that they cannot complete the process that determines whether the child is eligible to receive special education services. This is precious time when those children in need could be closing the learning gap rather than watching it widen.

United States Senator Patty Murray of Washington noted that "[w]ithout a parent to advocate for them, foster children can languish for years with unrecognized disabilities or insufficient services to help them succeed in school."¹ The common missing link is someone tracking and advocating for the child's educational needs as the child ventures through the dependency process. Historically, the Individuals with Disabilities Education Act (IDEA) has provided that missing link by requiring school systems to appoint a surrogate parent. Granting the school system sole responsibility for appointing an individual whose responsibility it is to monitor the school system's compliance to the IDEA is like allowing the fox to guard the henhouse. The surrogate parent, appointed and trained by the school system, often rubber stamps the school's decisions, placing no checks on the appropriateness of the program given the child's individual needs. Regarding the provision that allows dependency judges the authorization to appoint a surrogate parent under the 2004 reauthorization of the IDEA, Senator Murray noted, "Our Amendment makes small but very important changes to the IDEA to ensure that disabled students who are homeless or who live in foster homes . . . get the help they need."²

This Article will first discuss the background of and the need for special education services. Second, it will discuss the unique needs of foster children and how those needs impact their education. Third, it will discuss how those needs impact the children who require special education services including whether children in the foster care system are improperly included in special education. Fourth, the Article will discuss the 2004 changes to the IDEA that affect children in foster care including the definition of "parent" as well as changes to the appointment of surrogate parents process. Finally, the Article will explore how this new provision can be put into practice to help the foster child population. Page 352

I Background

A Education is Important for All of Society

The importance of education on the well-being of our society as a whole is undeniable. Beyond those actually receiving education, all of society benefits from a more educated population. "[E]ducation has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means...