Children adrift: addressing the educational needs of New York's foster children.

• Author: Gerber, Judith M.

1. INTRODUCTION

   For every child, quality education can clear the path to opportunity and success in life. Yet every day children in foster care face profound disruption to their education and significant obstacles to school success. As a result, these vulnerable children--who enter foster care (1) already at risk for poor educational outcomes (2)--do not receive the education they need and deserve. (3)

   In many communities, it is common child welfare practice to place children in foster care with little or no regard for their school history and needs. With each foster care move, children are pulled out of one school, often abruptly, and set down in another. Too often, these children are not timely enrolled in school and experience gaps in attendance and instruction. As children move, their educational records fail to follow them or arrive far too late; in the process, they lose critical services and both general and special education entitlements.

   Children in foster care tend to under-perform in school--they often lag in achievement, repeat grades, fail classes, and attend school irregularly. (4) Stigmatized by their foster care status, they may display distressing behaviors, acting out more frequently or withdrawing from others] Children in foster care manifest a broad array of medical, developmental, behavioral, and other disabilities that compromise their ability to learn or function in school. (6) Many receive special education services in disproportionately restrictive settings, while others are not identified to receive services at all. (7) They frequently lack the support of parents or other adults to help them meet the challenges of school or to obtain the services they need. (8) Set adrift in a "sea of adversity," children in foster care are distracted from school by other life challenges and require sensitive support tailored to their needs in school. (9)

   By the time they reach high school, many children in foster care are ready to give up on education. They drop out of high school at almost twice the rate of their classmates. (10) Some go on to earn general equivalency diplomas, but do so in fewer numbers than the general population. (11) Without a high school diploma, or at least its equivalent, foster care youth lack not only a vital passport to financial security and employment, (12) but a primary source of personal and social stature as well. (13) For many youth who are exiting foster care and entering into a world of "independent living," prospects for the future are bleak. Once out of care, these youth experience high rates of poverty, homelessness, addiction, and entry into the adult criminal court system. (14) Those who drop out of school are especially at risk, as they are less likely to lead productive and meaningful adult lives.

   In the face of these discouraging statistics, there is a significant movement afoot to address the educational needs of children in foster care. (15) The Adoption and Safe Families Act (ASFA), (16) enacted by Congress in 1997, has served as an impetus for reform. Designed to promote the permanency, safety, and well-being of children in foster care, ASFA has focused increased attention on the quality of these children's lives and their prospects for long term success. The federal regulations implementing ASFA identify access to educational services as a key component of child well-being. (17)

   In keeping with ASFA, New York State passed its landmark Governor's Permanency Bill in 2005, implementing significant reforms governing permanency for children in foster care, including the creation of a new Article 10-A of the Family Court Act relating to permanency hearings. (18) Calling on child welfare agencies to address child well-being in meaningful ways, the Governor's Permanency Bill seals the legal connection between education and permanency by making education a prime component of each child's permanency plan. (19) The new law requires the local Department of Social Services to address the educational and vocational needs of children in foster care, ensuring prompt enrollment in appropriate programs and referral for needed evaluations and services. (20) The law also brings schools into the realm of permanency planning, requiring them to cooperate in facilitating the educational components of children's permanency plans. (21)

   In view of these legislative mandates, the time is ripe to examine the laws and practices affecting the education of children in foster care in New York State. This Article offers judges, attorneys, child welfare professionals, and educators a roadmap of New York and federal laws and regulations. (22) It presents an overview of the laws governing education of children in foster care, as well as a detailed description of the legal responsibilities of child welfare agencies regarding education. It reviews the laws governing continuity of school placement, school enrollment, and disclosure of education records. This Article also describes general education services that may be available to children in foster care and offers a basic introduction to the special education system, highlighting recent amendments to the Individuals with Disabilities Education Act that may affect children in foster care. It describes the requirements for communication among the courts, the child welfare system, and the education system regarding children with special education needs. This Article explores the complex issue of parental responsibilities and education decision-making in both the general and special education arenas. It also briefly examines the interplay between the child welfare and education laws regarding the transition of foster youth into the adult world. Throughout the Article, we highlight some of the promising initiatives implemented both within and beyond the borders of New York State.

2. CHILD WELFARE TERMINOLOGY

   Responsibility for child welfare in New York is shared among public and private agencies at the state and local level. The New York State Office of Children and Family Services (OCFS) oversees child welfare services on a statewide basis, while the "local social service district" administers foster care on the county level. (23) For ease, we refer to all local social service district agencies as the Department of Social Services (DSS), even though agency names vary across the state. (24)

   In those dependency proceedings in which the Family Court places children into foster care, the court typically assigns children into either the "custody or care" of DSS or, when their parents no longer have parental rights, the guardianship of DSS. (25) DSS places these children in a broad variety of public and privately operated settings, ranging from the least restrictive foster care homes to more restrictive group home or residential placements. DSS may also contract with private agencies, which then assume responsibility for placing and servicing the children; these are variously referred to as "voluntary," private, or, as we do in this Article, contract agencies. (26) Together, DSS and its contract agencies fall under the umbrella terms "child-care agenc[ies]" or child welfare agencies. (27)

   Throughout the Article, we use the term "child welfare professionals" to include caseworkers, case managers, case planners, and others who work within the child welfare agencies.

3. THE NEW YORK STATE GOVERNOR'S PERMANENCY BILL REQUIREMENTS REGARDING EDUCATION

   Long before the advent of ASFA or the New York Governor's Permanency Bill, New York's social services regulations required child welfare agencies to play an active role in the education of children in foster care. (28) The 2005 Governor's Permanency Bill, however, details the mandated statutory steps that the local social service districts must take regarding each child in foster care. (29)

   To ensure that children placed in foster care move speedily toward their permanency goals, (30) the Governor's Permanency Bill requires the Family Court to hold an initial permanency hearing within eight months of the child's removal from home and at least every six months thereafter. (31) To keep the court (as well as the parents, foster parents, and attorneys, among others) apprised of the child's health, well-being, and current status, DSS must submit a Permanency Hearing Report fourteen days in advance of each hearing. Through the report, DSS will not only update the court on the child's educational progress, but must detail the steps taken "to enable prompt delivery of appropriate educational and vocational services to the child." (32)

   Detailing the specific programs in which children, if eligible, should be enrolled, the Governor's Permanency Bill is designed to prevent all children--from infancy through adolescence from getting lost in the education system. The Permanency Hearing Report must document steps taken to: refer young children who may have developmental delays or disabilities for early intervention and preschool evaluations and services; promptly enroll eligible children in pre-kindergarten programs, if available; refer school-aged children for special education evaluations or services, as appropriate; promptly enroll children who are diploma-bound in appropriate high school programs; and assist children age sixteen and over who do not intend to earn a diploma in becoming employed or enrolled in a vocational program. (33) The Permanency Report must also provide available information regarding evaluations and services provided or scheduled to be rendered, thus providing a way to measure whether a child's entitlement to timely evaluation and implementation of services has been honored. (34)

4. FOSTER CARE PLACEMENT DECISIONS: MAINTAINING SCHOOL CONTINUITY AND TIES

   Too frequently, when children move into foster care, they lose meaningful and consistent ties to their families, friends, neighborhoods, and schools. (35) Once in care, they become transient, moving multiple times from one foster care...