ADDRESSING theEDUCATIONAL

NEEDS ofCHILDREN inFOSTER CARE

NEW YORK STATE PERMANENT JUDICIAL COMMISSION ON JUSTICE FOR CHILDREN

A Guide for Judges,Advocates and Child Welfare

Professionals

Dear Reader,

For every child, a consistent, appropriate education canclear the path to adult independence and opportunity. Forchildren in foster care, appropriate schooling and educationalservices can additionally strengthen prospects for a stable,permanent home. Unfortunately, for many children in fostercare, the pressures of school disruptions, learning difficultiesand school failure diminish their well-being and underminethe family-building efforts of the child welfare system.

Children in foster care are among the most educationallyvulnerable children in the nation. The factors leading to theirentry into foster care, along with their experiences in the childwelfare system, place them at great risk for educational failure.They often lack stability in school placement, continuity ofeducational services, and parental participation and advocacyin their school lives — each a critical ingredient for schoolsuccess. And more than half of all children in foster care sufferfrom serious health problems, developmental delays and otherdisabilities that can compromise their potential.

Given the range of risks they face, it should not besurprising that the vast majority of children in foster care fallwell behind their peers in academic achievement and drop outof school at twice the rate of children in the generalpopulation. Studies nationwide reveal that children in fostercare with unmet educational needs are at substantial risk forhomelessness, poverty, and criminal court involvement.

These findings are particularly alarming because childrenin foster care are entitled under federal and state laws toreceive educational services to meet their needs. The federal

Adoption and Safe Families Act (ASFA) underscores thateducation of children in foster care is essential to their well-being and prospects for permanency. In New York, the 2005Permanency Law identifies education as an integralcomponent of permanency planning and requires both thejudiciary and child welfare professionals to address theeducation of children in permanency proceedings. At everyFamily Court permanency hearing, child welfare professionalsare required to submit a report that includes information onthe child’s educational progress and the steps taken to deliverappropriate educational services to the child.

This booklet contains ten basic questions that everyoneinvolved in foster care cases can ask to spotlight a child’seducational needs and integrate those needs withpermanency planning and review. Each question is essentialto ascertain the impact of foster care placement on a child’sschool success and permanency, and to address gaps ineducational services. We hope you will use this guide as acompanion to our booklet, Ensuring the Healthy Developmentof Foster Children: A Guide for Judges, Advocates and ChildWelfare Professionals, to promote the education needs ofchildren in foster care.

Judith S. KayeChief Judge of the State of New York

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Educational Portrait of Children in Foster Care

Children in foster care face unique challenges to success in theschool environment. The vast majority is at particular risk formedical problems, developmental delays, and disabilities thatcan undermine their ability to learn and function well in school.The experience of foster care placement itself — with frequentmovements in care, disruptions in schooling and educationalservices, and isolation from friends and teachers — can disruptthe rhythms of the already fragile life of a child in foster careand heighten the risk for poor educational outcomes. Perhapsmost significantly, children in foster care too often lack the mostfundamental resource for ensuring educational success — alasting relationship with a caring adult who can observe theirdevelopment over time, participate in their school lives,advocate on their behalf, and consent to evaluations andservices. Research substantiates these grim realities:

• Children in foster care do not perform as well asother children, lagging in achievement, repeatinggrades and failing classes. A study in WashingtonState found that children in foster care scored 15 to20% lower than other students on achievement tests. In Chicago, 96% of children in foster care scored belowgrade level in reading comprehension and 95%performed below grade level in math. A survey of highschool students in foster care found that 26% repeateda grade at least once since seventh grade and 60%failed a class in the previous year.

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• Children in foster care experience frequent changesin placement, often moving from school to school. Ina study of over 16,000 children in foster homes in NewYork City, researchers found that 70% of the childrenexperienced one or more transfers to a new school fornoneducational reasons in the year following placementin foster care. A smaller survey found that more than75% of children in foster care changed schools afterentering foster care, and out of these children, 65% hadtransferred in the middle of the school year.

• Children in foster care are twice as likely to drop outof high school as their peers. In a national studyfollowing youth who exited foster care, only 50% hadcompleted high school. A study of 11th graders inWashington State revealed that foster youth are 57%less likely to complete high school when compared tothe general population. In Wisconsin, only 63% of youthhad completed high school in the 18 months after theirdischarge from foster care.

• School records of children in foster care are oftenlost, misplaced, or inaccessible, hindering timelyschool enrollment and appropriate school placementand services. In a New York City study, lost ormisplaced records postponed school entry for half ofthose who experienced a delay.

• Children in foster care often experience gaps inschool because of delays in school enrollment. In aWisconsin study, 20% of youth in foster care reportedmissing at least one month of school due to delays inschool enrollment.

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• More than half the children in foster care exhibitmedical problems, developmental delays anddisabilities, including substantial behavioral andemotional problems that can compromise their abilityto learn or function in school. Studies nationwidedocument that 80% of all children in foster care have atleast one chronic medical illness and 25 % had three ormore chronic medical conditions. Research shows thatchildren in foster care exhibit developmental delay aboutfour to five times the rate among the general population.

• Children in foster care often lack consistentadvocacy and support from parents or other adultsto help them meet the challenges of school. A studyof middle school-aged children in foster care found thatadults in their lives often lacked a picture of theireducational needs and that no one acknowledgedprimary responsibility for the educational progress of thechildren. In a study of foster youth, 65% of high schoolseniors reported that no parent or guardian had everattended a teacher conference on their behalf and thatadults in their lives were less likely to monitor homeworkor attend school functions.

• Children in foster care receive special educationservices at three to five times the national rate forall children. A study of children in foster care receivingspecial education found that children in foster care arenearly five times more likely to be in more restrictivesettings than their disabled peers who were not infoster care.

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Is the child attending school?

How is this child faring in school?

How does this placement impact the child’s schoolcontinuity and stability?

Are school records in the child’s case file?

What are the medical, developmental, and emotionalneeds that impact this child’s educationalperformance?

Does this child require general education supportservices?

Does this child require special education evaluationor services?

Who is this child’s educational decision-maker?

Is this preschool-aged child enrolled in an earlychildhood education program?

What is the transition plan to address this olderchild’s educational and vocational needs andgoals?

Checklist to Meet the Educational Needs of Children in Foster Care

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Questions and Commentary1. Is the child attending school?

Studies nationwide reveal that children in foster care whotransfer schools often miss many days of school because ofdelays in their school enrollment. Enrollment is often delayedby the lack of appropriate documentation needed for schoolregistration, missing school records, uncertainty about who hasresponsibility or authority to enroll a child, and lack of timelytransportation.

Upon transfer to a new school, a childshould be enrolled in a timely manner tominimize gaps in attendance and services.While each school district has its ownenrollment practices, all schools requirebasic documentation for school registrationand enrollment. Typical required documentsinclude a birth certificate, immunizationrecords, a certificate of a current physicalexamination, and proof of residency in theschool district. When such records are notreadily available, some states requireschool districts to assist in obtainingneeded documents, rather than barring achild from school. To ensure timely and appropriate classplacement and services for the child, it is critical that the schoolhave current educational records reflecting the child’s gradeplacement, credits, and specialized services and programsreceived in the general or special education curriculum.

Typical Documentationfor School Registration

and Enrollment

• Birth Certificate or otherproof of school age

• Immunization record

• Certificate of a physicalexamination

• Prior school records

• Proof of residency in theschool district

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To facilitate a smooth enrollment process, foster parents,caseworkers and parents should have the appropriate legaldocumentation – for example, a letter from the Commissionerof social services or a court order — indicating the child’splacement in foster care and authorizing enrollment of the childin school. The documentation for school registration andenrollment should be part of the child’s case record and sharedwith those responsible for enrollment. All those involved in achild welfare proceeding need to ensure that decisions aboutplacement changes and attendance concerns are shared withschool personnel.

Decisionmakers also should ask whether the child is attendingschool regularly. In some states like New York, foster parentshave an obligation to ensure regular school attendance. Judgesand others can identify obstacles to regular school attendancesuch as inadequate transportation, foster home concerns, orunaddressed health needs. To enhance attendance, judges canwrite orders that ensure transportation to appointments andschool, reschedule court and medical appointments afterschool hours, and provide counseling to the child and family.

2. How is this child faring in school?

Research confirms that children in foster care generally do notperform as well in school as other children — often repeatingclasses, failing grades and performing substantially belowgrade level. They are twice as likely to drop out of high schoolas other youth and more likely to drop off their schools’ radarscreens. While frequent changes in placement, delays in

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school enrollment, gaps in attendance and disproportionatehealth problems are all significant factors contributing to poorschool performance, children in foster care also facechallenges to school success that are unique to their fostercare experience. Children in foster care often are distracted byworries, fears and a sense ofloss associated with separationfrom their family andplacement in foster care. Theymay avoid making peer andschool connections becausethey are ashamed of theirfoster care status or anticipatechanges in school placement.They may have difficultystudying and completinghomework without adult helpafter school.

The adults involved withchildren in foster care,including permanencydecisionmakers, need to watchfor the red flags identifying achild at risk for school failure orin need of specialized services.While report cards, transcripts,and standardized test resultsare measures of how a child isfaring in school, success inschool is more than

Red Flags for Identifying Students at Educational Risk

• Poor school attendance or frequenttardiness

• Poor academic performance on reportcards, teacher progress reports, statewideassessments or standardized testing

• History of grade retention

• Poor organizational, language, attentionor motor skills

• Poor or unusual school behavior orfrequent disciplinary actions takenagainst student

• Poor or limited peer or adult relations inschool

• Unaddressed medical or health needs

• Not well known to school staff

• Not involved in extracurricular andsocial activities

• Limited parental or caretakerinvolvement in child’s school life

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academics. School success alsoinvolves a child’s social,emotional, and physical well-being and safety. Children whoexperience school as a positiveforce in their lives are typicallyengaged in their schoolcommunity and participate innon-academic activities includingathletics, the arts, student clubsand school-sponsored socialevents. Children who have adultand peer connections in schoolare more likely to view theirschools as a supportive and safehaven.

Judges, advocates andchild welfare professionals canask a child, as well as schoolstaff, about a child’s daily schoollife, including friendships andparticipation in school activitiesand extracurricular programs.

When a child is not known well by school staff, it is important tofind out why and to connect the child with supportive schoolpersonnel. In addition, it is important to inquire whether a childin foster care is receiving or needs adult assistance withhomework and studying.

The 2005 New York Permanency Actrequires the local social service districtto submit permanency hearing reportsto the court before each permanencyhearing. The report includes an updateon the child’s educational progress anddocuments the steps taken to enablethe prompt delivery of appropriateeducational and vocational services tothe child, including:

• referral of infants, toddlers andpreschoolers for early interventionand preschool special educationevaluation and services

• enrollment of youngsters in pre-kindergarten programs, as available

• referral of school-age children whomay have disabilities for specialeducation evaluation and services

• enrollment of diploma-bound youthin appropriate high school programs

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3. How does this placement affect the child’s schoolcontinuity and stability?

Placement in foster care can profoundly affect a child’s schoollife. The transient nature of foster care often means thatchildren are abruptly and frequently uprooted from one schooland placed in another. Every school transfer requires a child toadjust to new teachers, curricula, classmates and expectations.For some children, a change in school may offer a fresh start,better services or freedom from physical danger or emotionalharm. For others, particularly adolescents, it can meanseparation from friends, community and support systems thatserve as a foundation for future success. For every child,school transfers can result in lost school records, delayedschool enrollment and interruption ineducational services. Thesedisruptions can thwart a child’spromotion to the next grade orprevent a student from receivingneeded high school credits. A changein school can significantly affect achild’s emotional well-being andcompromise success in school and athome, creating stress for caregiversand undermining stable placements.

Federal and state laws require thatschool location and continuity beconsidered in determining the child’s initial foster careplacement and subsequent placement changes. Some states,such as California and Washington, have laws providing that

By reviewing education records atthe initial hearing to place aneight-year-old in foster care, JudgeJoan Cooney, Supervising Judge,Westchester Family Court, notedthat the child was thriving inschool. She ordered social servicesto keep the child in her school andeither locate a foster careplacement in that school district or provide transportation to thatschool from a new community.

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children may remain intheir school of origin whenit serves their bestinterests, no matter wherethey are placed in fostercare. Around the country,some jurisdictions haveadopted similar policiesthrough agreementsbetween the localgovernmental socialservice agency andparticipating schooldistricts. Severaljurisdictions are usinglaws governing the

education of homeless children as a model to promote stabilityand continuity.

In all jurisdictions, judges, advocates and child welfareprofessionals should ask whether school transfers arenecessary for children, and if so, whether they are timely,planned and supportive. They should gather input from thechild’s current school and ascertain the child’s preferences andconcerns. They should investigate services that can preventschool transfers such as foster care recruitment in the child’sneighborhood and, when the child must be placed in a newcommunity, arrange transportation to the child’s school oforigin. When transfers are necessary, they should be timed soas to avoid changing schools during critical junctures such asexamination periods or near the end of the school term. Before

McKinney-Vento Homeless EducationAssistance Improvement Act of 2001, Pub.Law 107-110, Title X, § 1032, (reauthorizedunder the No Child Left Behind Act).

• Entitles homeless children to continuity ofschool placement, avoiding schooldisruption during periods of homelessness

• Requires school districts to appoint a liaisonto help homeless students and their familiesnavigate the school system and accesscommunity resources

• Establishes procedures governing schoolselection and enrollment, transfer of schoolrecords and transportation

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entering a new school, a child should receive a schoolorientation, a tour and necessary school supplies.

4. Are school records in the child’s case file?

To address a child’s educational needs and ensure schoolcontinuity, it is essential, at the beginning of a case, to gatherand review records concerning the child’s school history. Inaddition to basic education information, these records oftencontain school and social histories, multidisciplinary and otherevaluations, IndividualizedEducation Programs, healthrecords and notes fromteachers. Federal lawrequires child welfareprofessionals to ask schoolsfor educational records andshare that information withthe foster parents. To makemeaningful decisions forchildren in foster care, allpermanency decisionmakers,advocates and fosterparents need immediateaccess to school records.

School records can helpchild welfare professionalsto understand a child’sneeds and school statusand to participate in

Federal Requirements for SchoolRecords in the Child’s Case Plan

Education records of each child, along withhealth records, should be included andupdated in the child’s case plan and suppliedto the foster parent or foster care provider atthe time of each placement. Records shouldinclude:

• names and addresses of the child’s healthand educational providers

• child’s grade level performance

• child’s school record

• record of the child’s immunizations

• child’s known medical problems

• child’s medications

• other relevant health and educationinformation concerning the child determinedto be appropriate by the state agency

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educational planning. Judges need the information contained inschool records to make decisions about foster care, schoolplacement and services. Attorneys for children need theserecords to effectively advocate for a child’s educational needs.

Attorneys for parents needthem to promote parentinvolvement in their child’sschooling. Foster parents needschool information toadequately address the dailyneeds of the child andcommunicate with teachersand school staff. Finally,schools enrolling a foster childas a new student requiretimely access to prior schoolrecords to provide appropriateand continuous services.

Children’s education records are confidential and schools maydisclose them only if authorized under the Federal EducationalRights and Privacy Act (FERPA). Parents are entitled to accesstheir children’s education records and may authorize schools torelease records to third parties, including child welfareagencies. Judges, advocates and child welfare professionalsshould facilitate parental consent to disclose a child’s schoolrecords to all those involved in permanency planning for thechild. Where necessary, court orders can ensure that a child’sschool records are made part of the child’s uniform case recordand court file, and provided to the child’s caregivers and newschool. School representatives such as a guidance counselor

Examples of Useful SchoolRecords

• Attendance records

• Transcripts and report cards

• Standardized testing results

• Discipline records

• Health records

• Individualized assessments andevaluations

• Individualized Education Programs(IEPs)

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or pupil personnel staff can often help identify and locatemeaningful records. In some states, children in foster care andtheir caregivers are provided with an “education passport” thatensures that records move with the child and facilitatestransitions to new school settings.

5. What are the medical, developmental, and emotionalneeds that affect this child’s educationalperformance?

Children in foster care are at particular risk for medical andemotional problems, developmental delays and disability. Studyafter study reveals that they have far more fragile health thanother children and are far less likely to receive adequate healthcare. Lack of attention to the health needs of children in carecompromises their healthy development and creates additionalstresses that can disrupt stable placements and underminefamily-building efforts. These health problems also can interferewith regular school attendance, which adversely affects achild’s ability to learn or function in school.

At the earliest possible juncture, and at every subsequent courtappearance, judges, advocates and child welfare professionalsshould inquire how a child’s medical, developmental andemotional needs affect his or her educational performance.Federal and state law mandates that child welfare policy andpractice ensure a child’s well-being. Under federal Medicaidlaw, through the Early and Periodic Screening, Diagnosis andTreatment (EPSDT) provisions, children in foster care areentitled to receive comprehensive health care including hearingand vision screening, developmental assessment and

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Has the child received a comprehensive healthassessment since entering foster care?

Are the child’s immunizations up-to-date andcomplete for his or her age?

Has the child received hearing and visionscreening?

Has the child received screening for lead exposure?

Has the child received regular dental services?

Has the child received screening forcommunicable diseases?

Has the child received a developmental screening by a provider with experience in child development?

Has the child received mental health screening?

Is the child enrolled in an early childhood program?

Has the adolescent child received informationabout healthy development?

New York State Permanent Judicial Commission for Justice for Children

Checklist for the Healthy Development of Children in Foster Care

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immunizations. Federal and state special education lawsfurther mandate that children with suspected disabilities beidentified, evaluated and if eligible, receive appropriate servicesand accommodations in the form of Individualized EducationPrograms (IEPs) or Section 504 Accommodation Plans.

Health records from the child’s primary and specialist healthcare providers, developmental assessments and clinicalevaluations, as well as information about a child’s participationin the early intervention or preschool special educationprograms, should inform educational planning anddecisionmaking for children. Judges, advocates and childwelfare professionals can ask a child’s pediatrician, therapist orother clinical service provider to provide specific examples ofhow a child’s medical, developmental and emotional needsmay affect school placement and success and to suggest thetypes of school services, accommodations and other supportsthat can enhance the child’s educational success. Inquiries alsoshould determine whether the child has access to necessaryhealth monitoring by a school nurse, equipment such asasthma inhalers, glasses and hearing aids, andaccommodations that permit the child to access schoolprograms and services.

Children enter foster care with adverse life experiences and,once placed in care, must cope with the separation and loss oftheir families and the uncertainty of out-of-home care. Thecumulative effects of these experiences can create emotionalhealth issues that warrant counseling by school or mentalhealth professionals or further evaluation by a mental healthprofessional. Permanency decisionmakers can ask whether a

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child’s mental health needs havebeen addressed and how theyimpact the child’s educationplacement and progress. Theyshould ensure that a child’seducational decisionmakers haveaccess to this information, asneeded, to help schools provideservices that support andaccommodate the child’s mentalhealth needs.

6. Does this child need general education supportservices?

Children enter foster care with a broad array of gifts and needs.They, like all other children, may benefit from school servicesranging from programs for the academically gifted to theseverely challenged. General school support services canpromote better educational outcomes for children in foster careand prevent placement in more restrictive foster care andschool settings.

General education support services are most often used toprovide academic assistance to children in the regulareducation classroom. General education support services caninclude services to students at risk of falling short of learningstandards. Examples include guidance, counseling, programsto enhance English proficiency and study skill support services.School districts typically have a range of services short ofspecial education. In New York State, for example, children at

Red Flags for IdentifyingMedical, Developmental and

Emotional Problems

• Premature birth or low birthweight

• Hearing and vision problems

• Delays in achieving developmentalmilestones

• History of abuse or neglect

• Multiple foster care placements

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risk of failing to perform at expected levels on stateassessments can receive academic intervention Some schooldistricts may provide educationally related support services toenhance a student’s academic achievement and attendancesuch as counseling, speech and language therapy,occupational and physical therapy, small group instruction,modified curricula and individualized tutoring. Generaleducation support services also may include gifted and talentedassessments and programs.

Unlike special education services, in many states childrentypically have fewguaranteedentitlements to generaleducation supportservices. As a childmoves from school toschool, the types andamount of theseservices may vary.Judges, advocates and child welfareprofessionals shouldinquire whether thechild has beenassessed for generaleducation supportservices, the result ofassessments andwhere eligible, if thechild is receiving

Examples of General Education Support Services

• Educational and vocational guidance

• Counseling and social work services

• Remedial and supplemental academic instruction

• Study and organizational skills instruction

• Curriculum and testing modifications

• Speech and language improvement services

• Occupational and physical therapy

• Enrichment for gifted students

• Vocational education

• Programs for pregnant and parenting teens

• Drug/alcohol prevention services

• Resources for homeless students

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needed services. Where services are unavailable in the schooldistrict, efforts should be made to explore community resources.

Several other school programs may provide children in fostercare with educational services. Additionally, children living inpoverty may be eligible for federal Title I services.Decisionmakers can ask whether a child attends a school inneed of improvement and whether the child is eligible forsupplemental education services or school choice under thefederal No Child Left Behind services.

7. Does this child require special education evaluationor services?

Children in foster care have high rates of developmental delaysand disabilities. For many, general education services andaccommodations may not be adequate to address theireducational needs. These children may be eligible to receivespecial education services under the federal Individuals withDisabilities Education Act (IDEA). The IDEA requires states andschool districts to reach out into their communities to identify,locate, and evaluate all children with disabilities, includingchildren in the custody and care of the state. While the IDEAprovides a framework for providing special education services toeligible students, each State has its own laws and regulations.

Reauthorized and amended in 2004, the IDEA requires states toguarantee all eligible students with disabilities a “freeappropriate public education.” Although standards may varyamong states, the IDEA establishes a floor, or minimum, foreligibility. Under the IDEA, children must fit one of 13 categoriesof disability that adversely affect the child’s education.

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It can be difficult to distinguish theaffects of a disability from those ofchild abuse, neglect, and foster careplacement. Children in foster care areboth overidentified and underidentifiedfor special education. Those who areoveridentified may be improperlyclassified as emotionally disturbed,without adequate consideration givento alternative interventions to addresstheir personal family and social history.At the same time, children in fostercare need appropriate evaluations andservices to ensure that their health,neurological, language, motor andother developmental needs areunderstood and addressed.Permanency decisionmakers can helpchildren in foster care receive specialeducation by sharing importantinformation with school staff about achild’s foster care history and byensuring that the educationalevaluations are conducted byindividuals with sufficient expertise toassess the child’s status and needs.

In keeping with the IDEA, state lawsestablish a procedure for the referraland evaluation of children. A team,comprised of the child’s parents and

Key Principles of the IDEA

• a “free appropriate publiceducation”

• education in the least restrictiveenvironment meeting theirneeds, alongside their non-disabled peers to maximumextent possible

• comprehensive,multidisciplinary evaluation

• parental participation in theevaluation, planning anddecision-making process withinthe special education arena

• a detailed individualizededucation program (IEP) thatincludes the child’s disability,educational performance andneeds, program and services,including duration, frequencyand intensity and measurableeducational goals and objectives

• due process safeguards andprocedures, including the rightto an impartial hearing tochallenge school district’s actionsor decisions regarding the child’sspecial education program

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prescribed school personnel —including teachers and others familiarwith the child — determines thechild’s eligibility for services and, ifthe child is eligible, develops anIndividualized Education Program(IEP) for the child.

The IEP is a written plan designed toaddress the child’s academic,emotional, social, physical and otherrelated school needs. The IEP mustdescribe the child’s levels ofacademic achievement and functionalperformance, including how thechild’s disability affects the child’sinvolvement and progress in thegeneral education curriculum. TheIEP details the child’s specialeducation program and services,along with measurable academic andfunctional annual goals for the child.Under the IDEA, by the time a child

reaches age 16 (or earlier, if required by state law), the IEPmust include a transition services component to facilitate thechild’s movement from school to post-school activities.

To ensure continuity of special education services as childrenmove from one school to another, the IDEA requires schools tohonor the IEPs of transfer students by providing them withservices comparable to those on the IEP. To avoid a gap in

Thirteen Categories ofEligibility for Services

under the IDEA:

• Autism

• Deafness

• Deaf-blindness

• Emotional disturbance

• Hearing impairment

• Visual impairment, includingblindness

• Specific learning disability

• Mental retardation

• Multiple disabilities

• Orthopedic impairment

• Other health impairment

• Speech or language impairment

• Traumatic brain injury

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services, all schools are requiredto promptly obtain or respond torequests for education records ofchildren with disabilities.

Children with disabilities who areineligible for special educationservices under the Individuals withDisabilities Education Act but whohave a physical or mentalimpairment that affects a majorlife activity (including learning)may qualify for services and accommodations under § 504 ofthe federal Rehabilitation Act. For example, a child with juvenilediabetes may need accommodations to ensure that his or herblood glucose levels are checked and that appropriate snacksare available in the classroom. A child with attention deficitdisorder who needs medication or classroom strategies to stayon task may also benefit from an accommodation plan.

8. Who is this child’s educational decisionmaker?

All too often, children in foster care lack the most fundamentalingredient for educational success — a stable relationship withan adult who knows them, can observe their development overtime, advocate on their behalf and consent to services. A studyconducted by the Vera Institute in New York City revealed thatfoster parents and caseworkers rarely were aware of theacademic needs of children in foster care and that school staffhad little knowledge of the children’s foster care background andits bearing on the children’s schooling. The absence of stable,

The Special Education Process:

• Referral

• Multidisciplinary Evaluation

• Eligibility Determination and IEPDevelopment

• Implementation

• Annual Review

• Re-evaluation at least every 3 years

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educational decisionmakers for children in foster care is alarminggiven the research showing that children whose parents areinvolved in their education have greater success in school.

At the earliest point, judges, advocates and child welfareprofessionals should identify who will gather and share schoolinformation, communicate with school personnel, participate ineducational planning, monitor school performance anddetermine who is responsible for making educationaldecisions. They should know who will ensure that a child hasadequate transportation, clothing, school supplies and funds toparticipate in a full school day and extracurricular activities.While parents typically fulfill all these roles in the lives of theirchildren, children in foster care may need several individualsto ensure frequent communication and information-sharing.Every educational decisionmaker should know the child well,have the capacity to participate consistently in educationalplanning and decisionmaking and be responsible forcommunicating the child’s educational needs, progress andgaps in services to permanency decisionmakers. Judges canconvene educational decisionmakers at court appearances tofacilitate information-sharing.

Permanency decisionmakers must consult with the child’seducators, health care providers and therapists to understandthe learning requirements for caregivers to meet the child’seducational needs. Caregivers need the cognitive, physical andorganizational capacity to ensure that the child attends schoolregularly and is prepared to learn, and that the child receivesneeded testing and services. The number of other children inthe home and their needs can provide clues about a

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caregiver’s capacityand resources. Inchoosing educationaldecisionmakers, judges,advocates and childwelfare professionalsshould assess whetherthe individual hasphysical or cognitivelimitations that needaccommodation or caninterfere with the abilityto participate in schoolmeetings, assist thechild with schoolassignments andadhere to educationplans. They should alsoassess a caregiver’swillingness to partner with the school and service providers, aswell as birth parents during reunification efforts. Caregiversmay require services to help them understand the educationand health needs of their child and opportunities forindividualized training to help them advocate for their child’seducational success.

For all children in special education, parents are critical forbuilding and sustaining successful school programs. As equalparticipants in the special education planning process, parentshave the authority to consent to evaluations and services andto invoke due process procedures to challenge school district

Key Questions For EducationalDecisionmaking

• Who will gather, maintain, update and shareinformation about the child’s educationalhistory and needs?

• Who will communicate with school personnel,participate in parent-teacher conferences, andmonitor the child’s performance and status inschool?

• What are the learning requirements forcaregivers to meet the child’s educational needs?

• If the child is referred to or serviced by specialeducation who will serve as the child’s“parent”?

• Is there a need to appoint a surrogate parent forthe child?

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actions. Though child welfareprofessionals, birth parents andfoster parents may shareresponsibilities for attending to achild’s school needs, only anindividual qualified under thefederal Individuals withDisabilities Education Act(IDEA) may make educationdecisions for a child in specialeducation. To increase the oddsthat each child has an active,involved parent in the specialeducation process, the IDEAbroadly defines “parent” toinclude not only the child’s birthor adoptive parent, but otherindividuals as well, including a

foster parent (if state law so permits), legal guardian or otherperson acting in the place of the parent, such as a stepparentor grandparent. Though a child welfare agency may refer achild for special education evaluation, the federal law bars stateofficials, including child welfare professionals, from acting asthe child’s parent. For children whose parents are unknown orcannot be located, a “surrogate parent” must be appointed. Anychild who is a “ward of the state” also is entitled to a surrogateparent appointment. Under the IDEA, the “surrogate parent”can be appointed by the school district or in some instances,the court. The “surrogate parent” represents the interests of achild with a disability in the educational decision-making

Federal Special EducationDefinition of Parent

• a natural, adoptive or foster parent(unless a foster parent is prohibitedby state law from serving as a parent)

• a guardian (but not the state if thechild is a ward of the state)

• an individual acting in the place of aparent (including a grandparent,stepparent or other relative) withwhom the child lives, or an individualwho is legally responsible for thechild’s welfare

• a surrogate parent who has beenappointed in accordance with the law.

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process and has all the rights and responsibilities of a parentunder the IDEA.

9. Is this preschool aged child enrolled in an earlychildhood education program?

A substantial body of scientific evidence makes clear that theearly years of a child’s life are the building blocks to social andemotional development and education success. Recognizingthe links among early development, school readiness and laterschool performance, Congress set forth a national goal that “allchildren should enter school ready to learn.” For children infoster care, quality early care and education programs createan opportunity to experience stable, nurturing environments.For their families, they offer information, links to otherresources, and sometimes direct services to addresschallenging problems. Early care and education programs alsocan support foster and kinship parents. They also can providechild welfare agencies and the court with important informationabout the needs of a young child.

The Early Intervention Program under IDEA, also known asPart C, is an entitlement for children birth to age three who areexperiencing developmental delay or who have a physical ormental condition with a high probability of resultant delay —eligibility requirements that more than half of all young childrenin foster care can meet. Services for eligible children areenumerated in an Individual Family Service Plan (IFSP)developed collaboratively by the family, the evaluator and earlyintervention professionals. Under the newly reauthorized IDEAand Child Abuse Prevention and Treatment Act (CAPTA), all

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children from birth to their third birthday who are subjects of asubstantiated case of abuse or neglect must be referred to thePart C program.

Children age three through five who have a disability thataffects their ability to learn receive special education andrelated services under the federal Preschool Grants Program.This program is governed by the federal special education lawand is typically administered by school districts, but servicesare provided through a distinct preschool delivery servicesystem. Evaluations and service plans from these programsshould be reviewed by the child’s educational decisionmaker,child welfare professionals and court to better understand theneeds of the young school-aged child and his/her caregiver.

In addition to Early Intervention and Preschool SpecialEducation programs, many children in foster care are eligiblefor early childhood programs such as Head Start and publiclyfunded pre-kindergarten programs for four-year-olds. For manychildren in foster care, early childhood education professionalsprovide an extra pair of eyes to observe and enhance a child’ssafety and development. Child welfare professionals andpermanency decisionmakers should seek information fromthese professionals as part of education planning anddecisionmaking.

10. What is the transition plan to address this olderchild’s educational and vocational needs and goals?

For youth in foster care, the transition to adulthood can beperilous. The vast majority exit foster care at high risk forpoverty, homelessness, unemployment and incarceration.

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Many youth exiting foster care report difficulties in accessingmedical care despite significant physical, mental and emotionalhealth needs. All too often, foster care youth are dischargedfrom care without adequate preparation, resources andplanning for independent living.

Transition service plans that promote successful movementfrom adolescence to adulthood can help avert poor outcomes.ASFA, and the federal Foster Care Independence Act, mandatethat child welfare professionals and courts promote efforts toprepare all children in foster care for independent living —regardless of their permanency plans. The Foster CareIndependence Act, through the Chafee program, contemplatesthat foster youth will take an active role in designing andparticipating in their own plans for independent living. At thesame time, education laws require school districts to provide allstudents with education and career guidance, and specialeducation students with a broad spectrum of transition servicesto promote their successful transition to adulthood.

The child welfare, education and vocational rehabilitation lawscan be powerful tools to access resources that ease fosteryouth into meaningful, productive lives. At every courtappearance, decisionmakers and advocates need to ask abouta child’s future, encouraging a long-term perspective on schooland its connection to permanency and the transition toindependent adulthood. Additionally, decisionmakers shouldhelp adolescents in foster care to identify those adults who canserve as mentors and provide them with adequate supportsand services beyond foster care and into adulthood. In somejurisdictions, courts employ benchmark hearings to bring

together all the key adults in a child’slife in an effort to create a network ofservices and supports for the future.

The federal IDEA requires schools todevelop a detailed transition servicesplan for children with IEPs. As aresult, from age 16 on (or younger, ifappropriate or required by state law),foster youth who are classified asdisabled and receive specialeducation services under the IDEAcarry an additional entitlement to“transition services.” When needed,the transition services plan shouldinclude collaboration between schoolsand service providers and agenciesoutside the school, including links toadult services.

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Benchmark Hearings

The Circuit Court of Cook County,Illinois conducts comprehensiveBenchmark Permanency Hearingsfor foster teens. The hearings areheld when the teens reach ages 14and 16, as well as six monthsbefore case closure. The hearingsare designed to assure that fosteryouth receive appropriateassessment, planning andsupportive services. Those whoattend the hearing include theyouth, the caseworker, the child’sguardian ad litem, a representativeof the Chicago Public Schools andan adult chosen by the youth assomeone he or she can rely onand maintain contact with overthe coming years. When the youthcannot identify such an adult, thecourt makes efforts to find one. Atthe hearing, the court conducts adetailed inquiry about the child’seducational status, the plan fortransition to independence, anddocumentation needed to facilitatethe transition to independentadulthood and familyrelationships.

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Conclusion

This guide is one component of a toolkit to assist judges,attorneys, Court Appointed Special Advocates (CASAs),caseworkers, parents and educators to promote the educationalsuccess of children in foster care. The toolkit is composed ofthree elements: this working guide; Education Matters (a trainingmanual containing amplified answers to the questions in thisguide); and an in-depth law review article “Children Adrift:Addressing the Educational Needs of New York’s FosterChildren,” which is a roadmap through relevant federal and statelaws for judges and attorneys. Each tool is undergirded byguiding principles that address the educational needs of childrenin foster care and integrate them into meaningful permanencyplanning and review. This comprehensive toolkit can help youwhatever your role in promoting the educational needs andpermanency of children in foster care.

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Guiding Principles for the Educationof Children in Foster Care

Children in foster care should be enrolled in school andattend regularly. Education laws mandate that all childrenwithin the required age range attend school. Children in fostercare are no exception. Whether under the care of a parent orthe state, each child should attend school regularly. Childwelfare professionals must ensure that upon transfer to a newschool, a child is enrolled immediately to avoid gaps inattendance.

Children in foster care generally benefit from continuity infamily, social, community and school relationships. Children infoster care benefit from relationships and routines that promotefeelings of normalcy, acceptance and inclusion in their home,community and school environments. The child’s need forcontinuity in school is an important factor that the court andchild welfare professionals should consider in determining thechild’s foster care placement.

Children in foster care’s educational records should followthe child. As children in foster care move from school toschool, their educational records should accompany them. Anadult should be designated to gather records and sharenecessary information. The child’s important school-relatedrecords should be maintained and updated in a known,accessible, convenient fashion.

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Children in foster care who have unique medical,developmental or emotional needs or a suspecteddisability should be referred to general education supportservices or special education. For many children, generaleducation support programs such as counseling or readingassistance will address their educational needs. If the child issuspected of having a disability that adversely affects his orher education, the child is entitled to a timely evaluation andreview of a suspected disability. If eligible, for programs orservices, a child in foster care is entitled to timely placementin an appropriate setting consistent with his or herindividualized education program (IEP).

Children in foster care should have at least one adult intheir lives who routinely participates in educationalplanning. Children in foster care have a better chance ofschool success when their parents or other responsible adultsare involved in their school life. If needed, an adult should bedesignated to make educational decisions and advocate forthe child.

Children in foster care who are pre-school aged shouldbe enrolled in early childhood programs that promotetheir healthy development and school readiness. Qualityearly childhood programs nurture children, protect their healthand safety, and help to ensure that they are ready to learn.Early childhood professionals have daily opportunities toobserve and impact children’s development. Many children infoster care are eligible for Early Intervention and PreschoolSpecial Education Program, Head Start, Early Head Start andpublicly funded pre-kindergarten programs for four-year-olds.

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Children in foster care who are adolescents should beprepared for entry into the adult world by receivingservices that facilitate their transition to adulthood. Byadolescence, children in foster care should be preparing toenter adulthood, with supports to promote theirindependence. They are entitled to receive appropriate careerand vocational guidance in school and vocational andindependent living services under the child welfare laws.

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Federal Building Blocks to Meet the Educational Needs of Children

in Foster CareAdoption and Safe Families Act (ASFA): Establishes thefederal framework for child welfare policy and practice,building on its predecessor, the Adoption Assistance andChild Welfare Act (AACWA). ASFA focuses on ensuringpermanence, including adoption, for all children in foster careas well as ensuring their safety and well-being. Both lawsrequire that permanency decisionmakers address theeducational needs of children in foster care as a key indicatorof child well-being. The laws require caseworkers to includeand update children’s education records in the case plan andto supply education records to the foster parent or foster careprovider at the time of each placement and to develop awritten description of the services for children age 16 andolder to help prepare them for independent living.

Child Abuse and Prevention Act (CAPTA): Requires Statesto refer children under age three who are involved in asubstantiated case of child abuse or neglect to earlyintervention services funded under Part C of the Individualswith Disabilities Education Act (P.L. 108-36 §106(2)(A)(xxi)).The federal referral provisions respond to the nationalindicators confirming the serious risk of developmental delaysand disability among maltreated children.

Early Intervention Program for Infants and Toddlers (PartC of the Individuals with Disabilities Education Act):

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Provides an entitlement to services for infants and toddlersfrom birth to third birthday who experience developmentaldelays and disabilities or physical or mental conditions with ahigh probability of resulting in delay. States set specificeligibility criteria. The law permits parents, which includebiological and adoptive parents, a relative with whom the childis living, a legal guardian, and in some instances, a fosterparent and other caregivers, to receive services to enhancethe development of the child. These services are based on anIndividualized Family Service Plan (IFSP) that is developedwith professional and family input. All children from birth totheir third birthday who are involved in a substantiated case ofabuse or neglect must be referred to the Part C program.

Preschool Special Education Grant Program of theIndividuals with Disabilities Education Act: Provides anentitlement for children aged three through five to specialeducation and related services subject to the regulations ofPart B of the IDEA. Allows states to choose to continue EarlyIntervention Program eligibility standards; otherwise childrenmust meet eligibility standards established under Part B of theIDEA. Allows states to avoid premature labeling of children bymeeting standards for developmental delay without specificdiagnosis or classification.

Special Education for School Age Children withDisabilities: Part B of the Individuals with DisabilitiesEducation Act (IDEA): Establishes federal entitlement foreligible children ages 3–21 years with disabilities to receive a“free appropriate public education.” Establishes federalframework for states to identify and evaluate children with

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suspected disabilities and classify and service eligiblechildren. The law requires school districts to designate amultidisciplinary team to conduct comprehensive evaluationsof children and develop an “individualized education program”(IEP) for those who are eligible for services. The law identifieschild’s parent as equal and key participant in educationdecisionmaking and establishes procedural safeguards anddue process entitlements.

John H. Chafee Foster Care Independence Program ofthe Foster Care Independence Act of 1999: Providesflexible federal funding to states to promote independent livingfor youth in foster care ages 16 to 21 in realms of housing,employment, health, life skills and education, includingvouchers for college tuition and expenses. The law mandatesthat states involve community partners in developingprograms and provides youth a role in tailoring their ownprograms. The law provides funding for state initiatives, butChafee services are neither legally mandated nor a legalentitlement.

McKinney-Vento Homeless Assistance Act: Addresses theeducation of homeless children and their need for educationalstability and continuity. The law requires school districts tofollow procedures regarding school selection, schoolenrollment, record transfers, school transportation, and theappointment of a liaison to help homeless students and theirfamilies navigate the school system and access communityresources.

Federal Educational Rights and Privacy Act (FERPA):Governs confidentiality and disclosure of students’ education

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records for educational institutions that receive fundingincluding schools operated by public and private agenciesthat accept children in foster care as public placements. Thelaw requires confidentiality of education records containing“personally identifiable information.” It entitles parents toinspect, review, and in some cases, control disclosure of, theirchild’s education records. Schools may release records tothird parties upon the written request or consent of the parentor judicial order. Students age 18 and older may have accessto education records.

The No Child Left Behind Act: Federal law holding states andschool districts accountable for student achievement in keepingwith state learning standards and assessments. Mandates aseries of interventions for individual schools identified in needof improvement. Children attending schools in need ofimprovement may be eligible for school choice and, for childrenin poverty, supplemental educational services delivered byapproved school providers beyond the school day.

Section 504 of the Rehabilitation Act: Bars recipients offederal financial assistance, including schools, fromdiscriminating on the basis of disability and requiresreasonable accommodations for eligible individuals withdisabilities. Children with disabilities who do not meeteligibility criteria under the IDEA may be eligible for a Section504 Accommodation Plan which provides programs, servicesor accommodations to address disability-related needs in theschool setting.

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Additional Resources,Organizations, and Websites

New York State Permanent Judicial Commission on Justice for Childrenwww.nycourts.gov/ip/justiceforchildren

Albany Law Reviewwww.als.edu/journals/index.htmla

Casey Family Programswww.casey.org

Vera Institute of Justicewww.vera.org

U.S. Department of Education, in cooperation with Council for Exceptional Childrenwww.ideapractices.org

Office of U.S. Department of Education, Office of SpecialEducation and Rehabilitative Serviceswww.ed.gov/offices/osers/osep/index.html

National Dissemination Center for Children with Disabilitieswww.nichcy.org/index.html

National Child Welfare Resource Centeron Legal and Judicial Issueswww.abanet.org/child/rclji/education

National Resource Center for Youth Developmentwww.edu/NYCYS/programs.htm

The Center for Law and Educationwww.cleweb.org/

Studies on Educational Outcomesof Children in Foster Care

Advocates for Children of New York. (2000). Educational neglect: Thedelivery of educational services to children in New York City’s fostercare system. Available at www.advocatesforchildren.org.

Altschuler, S. J. (2003). From barriers to successful collaboration: publicschools and child welfare working together. Social Work 48, 52-63.

Barth, R., et. al., (2004). Educational risks and interventions for childrenin foster care. Institute for Evidence-Based Social Work Practice, TheNational Board of Health and Welfare. Available atwww.socialstyrelsen.se/NR/rdonlyres/B5498197-1554-47EO-9AOC-17EE9469F3C2/2905/20041109.pdf)

Blome, W. W. (1997). What Happens to Foster Kids: EducationalExperiences of a Random Sample of Foster Care Youth and a MatchedGroup of Non-Foster Care Youth. Child and Adolescent Social Work,14, 41-53.

Burley, M. & Halpern, M. (2001). Educational attainment of foster youth:Achievement and graduation outcomes for children in state care,Washington State Institute for Public Policy. Available fromwww.wa.gov/wsipp.

Center without Walls, The Educational Needs of Children in FosterCare: The Need for System Reform, The Final Report to the ChildWelfare Fund (1998), available atwww.advocatesforchildren.org/pubs/foster.doc

Conger, D. & Rebeck, A. (2001). How children’s foster care experiencesaffect their education. New York: New York City Administration forChildren’s Services.

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Cook, R. (1991). A national evaluation of Title IV-E foster careindependent living programs for youth: Phase 2 final report. Rockville,MD: Westat.

Courtney, M., Piliavin, I., & Grogan Kaylor A. Y Nesmith, A. (2001).Foster youth transitions to adulthood: A longitudinal view of youthleaving foster care, Child Welfare 70, 685-717.

Courtney, M., et. al. (2004). Midwest evaluation of the adult functioningof former foster youth: conditions of Illinois youth preparing to leavestate care. Chicago, IL: Chapin Hall Center for Children at theUniversity of Chicago.

Edmund S. Muskie School of Public Service. (1999). Maine study onimproving the educational outcomes for children in care. Baltimore:Annie E. Casey Foundation.

Finklestein, M., Wamsley, M., & Miranda, D. (2002). What keepschildren in foster care from succeeding in school, New York City: VeraInstitute of Justice.

Goerge, R. M., Voorhis, J. V., Grant, S., Casey, K. & Robinson, M.(1992). Special education experiences of children in foster care: anempirical study, Child Welfare 71, 419-437.

Haymes, S. & Vidal de Haymes, M. (2000). Educational experiencesand achievement of children and youth in the care of the departmentreceiving educational services from Chicago public schools. Urbana, IL:Children and Family Research Center.

Mech, E. V., & Fung, C. C. (1999). Placement restrictiveness andeducational achievement among emancipated youth. Research onSocial Work Practice, 9, 213-228.

McMillen, C., Aulander, W., Elze, D., White, T. & Thompson R.Educational Experiences and Aspirations of Older Youth in the FosterCare System. Child Welfare 82(4): 615-632.

Sawyer, R. J. & Dubowitz, H. (1994). School performance of children inkinship care. Child Abuse and Neglect 8, 587-597.

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Smithgall, C, et. al, Educational Experiences of Children in Out-of-HomeCare, Executive Summary, Chapin Hall Center for Children at theUniversity of Chicago, 2004.

Smithgall, C., et. al., (2005). Behavior Problems and EducationalDisruptions Among Children in Out-of-Home Care in Chicago: ExecutiveSummary, Chapin Hall Center for Children at the University of Chicago.

Zima, B.T., et.al, (2000). Behavior Problems, Academic Skill Delays andSchool Failure Among School-aged Children in Foster Care: TheirRelationship to Placement Characteristics. Journal of Child and FamilyStudies 9(1), 87-103.

PERMANENT JUDICIAL COMMISSION ON JUSTICE FOR CHILDREN

Judith S. Kaye, Chair

Richard J. Bartlett • Steven Blatt • Larry Brown • Sheryl Browne-

Graves • Geoffrey Canada • Lizette Cantres • Michael I. Cohen •

Joan O. Cooney • Monica Drinane • Nancy Dubler • Lee Elkins,

Lucy Friedman • Michael Gage • Richard N. Gottfried • Mary F.

Kelly • Jane Knitzer • Joseph M. Lauria • Ian G. MacDonald •

John Mattingly • Sondra Miller • Elba Montalvo • Nicolette M.

Pach • James Purcell • Mary Lou Rath • Clark Richardson •

Anthony Sciolino • Charles S. Sims • Jane Spinak • Alana Sweeny

• Sharon Townsend • Michael Weiner • Lucia B. Whisenand

Additional Health Care Working Group Members

Giselle Alvarez • Jackie Boissonnault • Kay Frank •

Cynthia Godsoe • Elisa Hyman • Katherine Locker • Karen

Norlander • Darlene Ward

Staff

Sheryl Dicker, Executive Director

Azra Farrell, Deputy Director

Trista Borra, Court Improvement Projects Coordinator

Rob Conlon, Special Projects Director

Judith Gerber, Education Consultant

Elysa Gordon, Senior Policy Analyst

Diane Lloyd, Administrative Assistant, Children’s Centers Program

Christina Recine, Administrative Assistant

Carol Roberts, Children’s Centers Program Coordinator

NEW YORK STATE PERMANENT JUDICIAL COMMISSION ON JUSTICE FOR CHILDREN

www.nycourts.gov/ip/justiceforchildren