4: Judges, lawyers, and advocates should empower students to participate in and support their decisions about where and how they receive education.

  1. Attendance: Judges, lawyers, and advocates should prioritize student attendance in school, to the extent possible, when scheduling services and appointments required by court order or the service plan.
  2. Judges, lawyers, and advocates must discuss whether the student’s educational needs and goals have been identified and addressed at every permanency hearing.
  3. Federal and State law require the student remain in the school of origin unless it is not in the student’s best interest.
  4. When students change schools, the law requires enrollment within three school days and records transfer within 10 working days.
  5. Some students in RTCs may attend on-campus charter or private schools; others may attend local public schools.
  6. RTCs must notify the local school district within three days of a student’s placement in their facility, unless there is an on-campus charter at the facility.
  7. Schools have a legal duty to identify, locate, and evaluate students with disabilities who may be in need of special education.
  8. For students placed in RTCs who receive special education services, a surrogate parent must be appointed if a parent does not retain rights to make education related decisions.
  9. For students placed in RTCs who receive special education services, the student’s Admission, Review, and Dismissal Committee develops and implements the student’s Individualized Education Program.

Engagement:

Lawyers, judges, and advocates should empower students to participate in decisions about where and how they receive education.

Empowering students in foster care[1] to participate in the decisions about where and how they receive education can build trust and improve engagement. The school[2] setting offers students in care opportunities to develop positive connections with peers and supportive adults, as well as build skills for success, social-emotional learning, and resilience. Asking students about their interests can also help develop post-secondary pathways.

Unless specifically excused by the court, a child in foster care must attend each permanency hearing.[3] When a child cannot attend in person, communication by telephone or video conferencing may offer alternative means of participation.[4]

  1. Attendance: Judges, lawyers, and advocates should prioritize student attendance in school, to the extent possible, when scheduling services and appointments required by court order or the service plan.

Students in foster care are excused from school for activities related to the court order or service plan, including court appearances and parent-child visits.[5] However, missed school often puts students at risk of falling behind or losing credit. To the extent practicable, services, visits, and other appointments required by court order or the service plan should occur outside of school hours. It is also important to take the student’s educational needs and goals into consideration when scheduling these events, and special attention should be given to important dates like assessment testing and school breaks. Although scheduling outside school hours may create practical challenges, judges, lawyers, and advocates should collaborate with the Department of Family and Protective Services (DFPS) and education partners to identify creative solutions to overcome these concerns.

  1. Judges, attorneys, and advocates must discuss whether the student’s educational needs and goals are being met at every permanency hearing.

Education is a key well-being factor and is critical for students in foster care who are placed in residential treatment facilities (RTCs). Attorneys and Guardians ad litem in child welfare cases have many duties to their child clients, including the requirements to obtain and review relevant records and determine whether educational needs and goals have been identified and addressed.[6] The lawyers and advocates should discuss these issues with the child and persons with significant knowledge of the child’s history and condition, including educators, service providers, and caregivers. [7]

Judges must address education at all permanency hearings before and after the final order.[8] There must be findings as to whether an education decision-maker has been identified, whether the child’s educational needs and goals have been identified and addressed, and whether there have been major changes in the child’s school performance or if there have been any serious disciplinary events. [9]

Disciplinary action that leads to a removal of a student in care from their instructional classroom can cause the student to fall further behind in school. A student’s status in DFPS conservatorship is a factor to be considered in each decision concerning school discipline.[10]  Also, under the Individuals with Disabilities Education Act (IDEA), if a student with a disability is removed from class for disciplinary reasons, certain procedures apply (See #10 below).

In addition to questions about the student’s progress in school and disciplinary action, the court could inquire about normalcy by asking about the student’s favorite and least favorite classes, friends, upcoming school functions, and involvement in extra-curricular activities.

  1. Federal and state law require the student remain in the school of origin unless it is not in the student’s best interest.

Under federal and state law, students in foster care have the right to remain enrolled in their school of origin. The school of origin can be the same school that the student was attending upon removal or the school that the student is attending at the time of any subsequent change to their residential placement while in foster care.  A student in foster care should continue in the school of origin unless it is not in the student’s best interest.[11]

Federal and state child welfare law also require placement in the most appropriate, least restrictive setting. These two requirements must be balanced and coordination between residential placements and schools must occur to ensure both mandates are met. RTCs are not considered least restrictive placements and are not long-term placements. Once a child achieves their treatment goals, the child should transition out of the RTC.  

Determining where a student in foster care will attend school while at an RTC is an important step in the placement process. If the student can continue at their previous school, then that should be considered; however, if that is not possible, early coordination between the sending and receiving schools is critical. Because each situation is unique, including timeframes for transition, it is important that education stability and transition be discussed early in the placement process. As part of the student’s transition plan, judges, lawyers, and advocates should encourage coordination between the sending and receiving schools.

  1. When students change schools, the law requires enrollment within three school days and records transfer within 10 working days.

Students lose four to six months of progress with every school move.[12] Part of the challenge when a student in foster care changes schools because of a placement change is the lack of prompt records transfer to inform the receiving school about the student’s current coursework, grades, or educational progress. To alleviate this issue, if a school transfer is needed, the law requires enrollment within three school days; DFPS policy requires enrollment within two days.[13] Schools must ensure records, including any special education records or plans, are transferred within 10 working days of the date a student in foster care begins enrollment at the receiving school.[14] Schools must allow a student in foster care to enroll even without the documents otherwise required for enrollment, and DFPS must ensure these documents are submitted to the school within 30 days of enrollment.[15]

Beyond records transfer, communication and collaboration between education, child welfare, and legal professionals can support more seamless transitions between schools. Judges, lawyers, and advocates can encourage school personnel at the sending and receiving schools to call and/or email each other about the student so the transition is as smooth as possible.

  1. Some students in RTCs may attend on-campus charter or private schools; others may attend local public schools.

Many RTCs choose to have an on-campus charter school to provide consistency in the therapeutic or treatment approach. Per DFPS policy, students placed at an RTC receiving special education services can attend the school on the RTC campus if the school meets the student’s needs and is the least restrictive environment.[16] Students placed in RTCs should not be segregated from the general school population as a standard procedure or excluded from normal school activities unless such activities are discussed and determined to be prohibitive for appropriate reasons other than location of residence. Students residing in RTCs and attending local, off-campus public or charter schools should have as typical a school experience as their needs and behaviors allow.

For students with disabilities, the school placement must conform with an approved Individualized Education Program (IEP). (See #10 below). Lawyers and advocates should ensure that students in foster care who receive special education services prior to being placed at the RTC continue to receive the same protections under IDEA or that a referral for an evaluation is made if a disability is suspected.

  1. RTCs must notify the local school district within three days of a student’s placement in their facility, unless there is an on-campus charter.

Texas state law and rules require a residential facility to notify the school district in which the facility is located not later than the third day after a child in foster care aged three to 22 years is placed in the facility. [17] The provider must send written notice to the school district where the facility is located, unless the facility operates their own open enrollment charter school.[18] School districts and RTCs are required to develop agreements about providing education services to students placed in RTCs pursuant to Texas Education Agency (TEA) and DFPS rules.[19]

  1. Identity: Schools have a legal duty to identify, locate, and evaluate students with disabilities who may be in need of special education.

Public schools are required to identify, locate, and evaluate students whom the school districts have reason to suspect have a disability and may need special education and related services.[20] National research shows that approximately 33-50% of students in foster care receive special education services.[21] Although more of these students may qualify for and benefit from special education services, due to frequency of moves, previous school districts may not have evaluated them for services. IDEA requires states to maintain policies and procedures for the provision of a free and appropriate public education (FAPE) to every child with a disability  in need of special education services between the ages of three and 21, including children in residential settings.[22] If a child in care is struggling academically or behaviorally in school, parties should consider asking the school in writing to evaluate the child for special education and related services. A school district must provide special education and related services to eligible students residing in a licensed facility within district boundaries unless those services are provided through a charter school, approved non-public school, or a facility-operated private school (with exceptions).[23] The school district must contact the facility annually to offer services to eligible students with disabilities.[24]

  1. For students placed in RTCs who receive special education services, a surrogate parent must be appointed if a parent does not retain rights to make education related decisions.

Students in foster care have an education decision-maker selected by DFPS, typically the daily caregiver, to make day-to-day education decisions on the student’s behalf.[25] In addition, if a student in foster care is eligible to receive special education services and does not have a parent who has retained education decision-making rights or a caregiver willing or able to act as an education decision-maker, the school must appoint a surrogate parent to make special education decisions on behalf of the student within 30 days of realizing there is a need.[26] The surrogate parent may be a Court Appointed Special Advocate, a community member, a retired educator, or any other qualified person, and they must complete required training.[27] The caseworker or any other employee of any public agency that is involved in the student’s education or care, including RTC staff and employees of the local school district, is prohibited by law from being named the student’s surrogate parent.[28]

Public schools are responsible for appointing a surrogate parent and must provide written notice of the appointment to the student’s educational decision-maker and caseworker as soon as practicable.[29] To ensure the educational rights of a child are protected in the special education process, the court may appoint a surrogate parent. [30] In doing so, courts can ensure the student in foster care placed in an RTC continues to have an informed and engaged surrogate parent who is familiar with their background, educational needs and goals. 

  1. The student’s Admission, Review, and Dismissal Committee develops and implements the student’s Individualized Education Program.

By law, schools must provide an IEP for all students receiving special education services. For students who receive special education services, the receiving school must follow the existing IEP until it is either adopted or replaced.  The receiving school must hold an Admission, Review and Dismissal (ARD) Committee meeting within 30 school days of receiving verification from a parent or the previous school district that the student was receiving special education services in the previous school district. 

Public schools must provide a written IEP designed specifically for each student receiving special education services. The IEP is developed by an ARD Committee, which consists of members designated by law.[31] The manner in which the school district will provide a FAPE to the student, including where the child will attend school and what positive appropriate behavioral interventions will be used, are outlined in the student’s IEP. The IEP must be revised at least once a year or upon request by a member of the ARD Committee.[32] Texas law requires that transition services be included in the IEP once the student reaches the age of 14.[33] The IEP must be based on completed, age-appropriate, transition assessments and include coordinated, measurable, annual postsecondary goals. The transition services, including courses of study, needed to assist the student in reaching those goals must also be included in the student’s IEP.[34]

Under IDEA, if a student with a disability is removed from class for disciplinary reasons, special procedures apply. The law considers 10 school days, including 10 consecutive school days or parts of days, or 10 nonconsecutive days if they form a pattern, a school removal.[35]  The school, the parent, and relevant members of the student’s ARD Committee must have a Manifestation Determination Review (MDR)[36] within 10 school days of any decision to change the placement of a student with a disability due to a violation of the student code of conduct.  The purposed of the MDR is to determine whether the conduct that led to the student’s removal was caused by or had a direct and substantial relationship to the student’s disability or was the direct result of the school’s failure to implement the student’s IEP.[37] If the answer to either question is yes, the student cannot be removed from the student’s educational placement.

 

 

Foster Care and Education Resources

Various agencies, advocates, and child welfare organizations offer resources and programs to assist students in foster care, including the Department of Family and Protective Services, the Texas Education Agency, every local education agency (schools districts and open-enrollment charter schools), the Texas Higher Education Coordinating Board, Texas public institutions of higher education, and Disability Rights Texas, the federally designated protection and advocacy agency for people with disabilities. Contact information and extensive foster care and education resources and tools are available through the non-exhaustive list of websites below:

Children’s Commission on Foster Care and Education:

Disability Rights Texas - Education Resources:

Texas Court Appointed Special Advocates - Educational Advocacy Guidebook:

Texas Department of Family & Protective Services - Education:

Texas Education Agency - Foster Care and Student Success:

Texas Higher Education Coordinating Board - College for All Texans:

Texas Workforce Commission - Foster Care Programs:

  • https://twc.texas.gov/partners/foster-care-programs

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References

[1] The term “student in foster care” is used throughout this document to include all school age children, youth, and young adults in DFPS managing conservatorship. Where appropriate, the terms “child,” “youth,” or “young adult” are also used.

[2] The term “school” in this document refers only to a public school, also known as a Local Education Agency (LEA), including school district campuses and open enrollment charter schools.

[3] Tex. Fam. Code § 263.302.

[4] For more information about video conferencing, please see https://www.txcourts.gov/programs-services/video-conferencing/

[5] Tex. Educ. Code § 25.087(b)(1)(F).

[6] Tex. Fam. Code §§ 107.002(a)(2), 107.002(i), 107.003(1)(E), 107.004(d-2).

[7] Id.

[8] Tex. Fam. Code §§ 263.306(a-1)(5)(G), 263.5031(4)(J).

[9] Id.

[10] Tex. Educ. Code § 37.001(a)(4).

[11] 42 U.S.C. § 675(1)(G); 20 U.S.C. § 6311(g)(1).

[12] Legal Center for Foster Care & Education. (2008). Questions and Answers: Credit Transfer and School Completion. Available online at https://www.americanbar.org/content/dam/aba/migrated/child/education/QA_2_Credits_FINAL.authcheckdam.pdf.

[13]  Tex. Fam. Code § 264.115(a); CPS Policy Handbook Section 15310 Time Frame for Completing the Child’s Enrollment. Available online at http://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_x15000.asp#CPS_15310.

[14] Tex. Educ. Code § 25.007(b)(1).

[15] Tex. Educ. Code § 25.002(g).

[16] CPS Policy Handbook Section 15231 Choosing a Public School or Residential Treatment Center (RTC) Program. Available online at https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_x15000.asp.

[17] Tex. Educ. Code § 29.012.

[18] Id..

[19] Tex. Educ. Code § 29.012; 19 Tex. Admin. Code § 89.1115 and 40 Tex. Admin. Code §702.417

[20] 20 U.S.C. §1412 (a)(3).

[21] National Working Group on Foster Care & Education. (April 2018). National Factsheet on the Educational Outcomes of Children in Foster Care. Available online at http://www.fostercareandeducation.org/OurWork/NationalWorkingGroup.aspx.

[22] 20 U.S.C. §1412 (a)(1)(A).

[23] 19 Tex. Admin. Code §89.1001(c).

[24] Id.

[25] Tex. Fam. Code § 263.004; CPS Policy Handbook Section 15371 Designating an Education Decision-Maker. Available online at http://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_x15000.asp#CPS_15371.

[26] 20 U.S.C. § 1415(b)(2); Tex. Educ. Code § 29.0151.

[27] Tex. Admin. Code § 89.1047(c)(1); Tex. Educ. Code § 29.0151(e); Tex. Fam. Code § 263.0025(e).

[28] Tex. Educ. Code § 29.0151(c); Tex. Fam. Code § 263.0025(d).

[29] 34 C.F.R. § 300.519; Tex. Educ. Code § 29.0151; 19 Tex. Admin. Code § 89.1047(c).

[30] Tex. Fam. Code § 263.0025(b).

[31] 20 U.S.C. § 1414(d)(1)(B); Tex. Educ. Code § 29.005; 19 Tex. Admin. Code § 89.1050.

[32] 34 C.F.R. § 300.324; 19 Tex. Admin. Code § 89.1050.

[33] Tex. Educ. Code §29.0111; 19 Tex. Admin. Code § 89.1055(h).

[34] 20 U.S.C. § 1414 (d); Tex. Educ. Code § 29.011.

[35] Under IDEA, removal means the student is not allowed to attend their regularly scheduled classes. Also, if a student is sent home at any point during the school day, the student is considered removed from the school for that full day. See 20 U.S.C. § 1415 (k).

[36] 34 C.F.R. § 300.530 (e)

[37] 20 U.S.C. § 1415 (k)(1); Tex. Educ. Code § 37.001(a).

1. 2.  3.  4.  5. 6. 7.8.9.

Judges, lawyers, and advocates should empower students to participate in and support their decisions about where and how they receive education.

Empowering students in foster care[i] to participate in the decisions about where and how they receive education can build trust and improve engagement. The school[ii] setting offers students in care opportunities to develop positive connections with peers and supportive adults, as well as build skills for success, social-emotional learning, and resilience. Asking students about their interests can also help develop post-secondary pathways.

Unless specifically excused by the court, a child in foster care must attend each permanency hearing.[iii] When a child cannot attend in person, communication by telephone or video conferencing may offer alternative means of participation.[iv]

[i] The term “student in foster care” is used throughout this document to include all school age children, youth, and young adults in DFPS managing conservatorship. Where appropriate, the terms “child,” “youth,” or “young adult” are also used.

[ii] The term “school” in this document refers only to a public school, also known as a Local Education Agency (LEA), including school district campuses and open enrollment charter schools.

[iii] Tex. Fam. Code § 263.302.

[iv] For more information about video conferencing, please see https://www.txcourts.gov/programs-services/video-conferencing/

Judges, lawyers, and advocates should prioritize student attendance in school, to the extent possible, when scheduling services and appointments required by court order or the service plan.

Students in foster care are excused from school for activities related to the court order or service plan, including court appearances and parent-child visits.[i] However, missed school often puts students at risk of falling behind or losing credit. To the extent practicable, services, visits, and other appointments required by court order or the service plan should occur outside of school hours. It is also important to take the student’s educational needs and goals into consideration when scheduling these events, and special attention should be given to important dates like assessment testing and school breaks. Although scheduling outside school hours may create practical challenges, judges, lawyers, and advocates should collaborate with the Department of Family and Protective Services (DFPS) and education partners to identify creative solutions to overcome these concerns.

[i] Tex. Educ. Code § 25.087(b)(1)(F).

Judges, attorneys, and advocates must discuss whether the student’s educational needs and goals are being met at every permanency hearing.

Education is a key well-being factor and is critical for students in foster care who are placed in residential treatment facilities (RTCs). Attorneys and Guardians ad litem in child welfare cases have many duties to their child clients, including the requirements to obtain and review relevant records and determine whether educational needs and goals have been identified and addressed.[i] The lawyers and advocates should discuss these issues with the child and persons with significant knowledge of the child’s history and condition, including educators, service providers, and caregivers. [ii]

Judges must address education at all permanency hearings before and after the final order.[iii] There must be findings as to whether an education decision-maker has been identified, whether the child’s educational needs and goals have been identified and addressed, and whether there have been major changes in the child’s school performance or if there have been any serious disciplinary events. [iv]

Disciplinary action that leads to a removal of a student in care from their instructional classroom can cause the student to fall further behind in school. A student’s status in DFPS conservatorship is a factor to be considered in each decision concerning school discipline.[v]  Also, under the Individuals with Disabilities Education Act (IDEA), if a student with a disability is removed from class for disciplinary reasons, certain procedures apply (See #10 below).

In addition to questions about the student’s progress in school and disciplinary action, the court could inquire about normalcy by asking about the student’s favorite and least favorite classes, friends, upcoming school functions, and involvement in extra-curricular activities.

[i] Tex. Fam. Code §§ 107.002(a)(2), 107.002(i), 107.003(1)(E), 107.004(d-2).

[ii] Id.

[iii] Tex. Fam. Code §§ 263.306(a-1)(5)(G), 263.5031(4)(J).

[iv] Id.

[v] Tex. Educ. Code § 37.001(a)(4).

Federal and state law require the student remain in the school of origin unless it is not in the student’s best interest.

Under federal and state law, students in foster care have the right to remain enrolled in their school of origin. The school of origin can be the same school that the student was attending upon removal or the school that the student is attending at the time of any subsequent change to their residential placement while in foster care.  A student in foster care should continue in the school of origin unless it is not in the student’s best interest.[i]

Federal and state child welfare law also require placement in the most appropriate, least restrictive setting. These two requirements must be balanced and coordination between residential placements and schools must occur to ensure both mandates are met. RTCs are not considered least restrictive placements and are not long-term placements. Once a child achieves their treatment goals, the child should transition out of the RTC.  

Determining where a student in foster care will attend school while at an RTC is an important step in the placement process. If the student can continue at their previous school, then that should be considered; however, if that is not possible, early coordination between the sending and receiving schools is critical. Because each situation is unique, including timeframes for transition, it is important that education stability and transition be discussed early in the placement process. As part of the student’s transition plan, judges, lawyers, and advocates should encourage coordination between the sending and receiving schools.

[i] 42 U.S.C. § 675(1)(G); 20 U.S.C. § 6311(g)(1).

When students change schools, the law requires enrollment within three school days and records transfer within 10 working days.

Students lose four to six months of progress with every school move.[i] Part of the challenge when a student in foster care changes schools because of a placement change is the lack of prompt records transfer to inform the receiving school about the student’s current coursework, grades, or educational progress. To alleviate this issue, if a school transfer is needed, the law requires enrollment within three school days; DFPS policy requires enrollment within two days.[ii] Schools must ensure records, including any special education records or plans, are transferred within 10 working days of the date a student in foster care begins enrollment at the receiving school.[iii] Schools must allow a student in foster care to enroll even without the documents otherwise required for enrollment, and DFPS must ensure these documents are submitted to the school within 30 days of enrollment.[iv]

Beyond records transfer, communication and collaboration between education, child welfare, and legal professionals can support more seamless transitions between schools. Judges, lawyers, and advocates can encourage school personnel at the sending and receiving schools to call and/or email each other about the student so the transition is as smooth as possible.

[i] Legal Center for Foster Care & Education. (2008). Questions and Answers: Credit Transfer and School Completion. Available online at https://www.americanbar.org/content/dam/aba/migrated/child/education/QA_2_Credits_FINAL.authcheckdam.pdf.

[ii]  Tex. Fam. Code § 264.115(a); CPS Policy Handbook Section 15310 Time Frame for Completing the Child’s Enrollment. Available online at http://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_x15000.asp#CPS_15310.

[iii] Tex. Educ. Code § 25.007(b)(1).

[iv] Tex. Educ. Code § 25.002(g).

1. 2.  3.  4.  5. 6. 7.8.9.

When students change schools, the law requires enrollment within three school days and records transfer within 10 working days.

Students lose four to six months of progress with every school move.[i] Part of the challenge when a student in foster care changes schools because of a placement change is the lack of prompt records transfer to inform the receiving school about the student’s current coursework, grades, or educational progress. To alleviate this issue, if a school transfer is needed, the law requires enrollment within three school days; DFPS policy requires enrollment within two days.[ii] Schools must ensure records, including any special education records or plans, are transferred within 10 working days of the date a student in foster care begins enrollment at the receiving school.[iii] Schools must allow a student in foster care to enroll even without the documents otherwise required for enrollment, and DFPS must ensure these documents are submitted to the school within 30 days of enrollment.[iv]

Beyond records transfer, communication and collaboration between education, child welfare, and legal professionals can support more seamless transitions between schools. Judges, lawyers, and advocates can encourage school personnel at the sending and receiving schools to call and/or email each other about the student so the transition is as smooth as possible.

[i] Legal Center for Foster Care & Education. (2008). Questions and Answers: Credit Transfer and School Completion. Available online at https://www.americanbar.org/content/dam/aba/migrated/child/education/QA_2_Credits_FINAL.authcheckdam.pdf.

[ii]  Tex. Fam. Code § 264.115(a); CPS Policy Handbook Section 15310 Time Frame for Completing the Child’s Enrollment. Available online at http://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_x15000.asp#CPS_15310.

[iii] Tex. Educ. Code § 25.007(b)(1).

[iv] Tex. Educ. Code § 25.002(g).

RTCs must notify the local school district within three days of a student’s placement in their facility, unless there is an on-campus charter.

Texas state law and rules require a residential facility to notify the school district in which the facility is located not later than the third day after a child in foster care aged three to 22 years is placed in the facility. [i] The provider must send written notice to the school district where the facility is located, unless the facility operates their own open enrollment charter school.[ii] School districts and RTCs are required to develop agreements about providing education services to students placed in RTCs pursuant to Texas Education Agency (TEA) and DFPS rules.[iii]

[i] Tex. Educ. Code § 29.012.

[ii] Id..

[iii] Tex. Educ. Code § 29.012; 19 Tex. Admin. Code § 89.1115 and 40 Tex. Admin. Code §702.417