Educational Advocacy for Foster Youth: Challenges & Opportunities

National Association of Counsel For ChildrenChicago 2012

Erin Han, Esq.Richard Cozzola, LAF (Legal Assistance Foundation)

Janeen Barth Schlotzer (Advocacy Services of the Jewish Federation)

Representing Foster Youth

For the purposes of this talk, “Foster Youth” means “Children Living in Care,” including• children living in foster homes • children placed in group homes or a

residential facility by the state CPS/social services agency.

We use this term interchangeably with the term “Wards.”

Sallie StudentSallie is a 17 ½ year old ward whom you began representing last month. Ward 7 yrs.• Bipolar Disorder, Post-traumatic Stress Disorder, and Mild to Moderate Mental

Retardation. Full-scale IQ of 74. Currently a sophomore in high school.• Mother history of drug addiction, TPR. Intermediate contact w/Sallie• Sallie was in a non relative foster home last year in Suburban School District. She

was eligible for special education and had IEP at the time, which required placement at a therapeutic day school. 4 months ago, Sallie became pregnant, was moved from foster home to special group home program for parenting wards in the city. New school district placed her in general education setting.

• In last three months Sallie went "on run," from program, first to boyfriend’s family, then shelter. In school, Sallie fought; suspended several times; advised by school social worker that she should drop out & pursue GED. School has not conducted any new IEP meetings –claims b/c of Sallie’s lack of attendance. Sallie remains in a general education setting. In last month, Sallie stopped attending class. When she returned last week school gave her expulsion notice for a fight from 6 weeks ago.

• Sallie just moved to foster home of a second cousin; foster mother contacted you for education help on referral from the caseworker but has been inconsistent in responding to you. Caseworker reports she is a recovering alcoholic - clean 11 yrs.

What Issues Do you See

• Educational• Child Welfare • Social• Attorney Client Ethical• Attorney Client Practical

Who is the client?

Who is Your Client?

Options: • The Child• The Parent• The Education Rights holder (the person

who is authorized to make educational decisions in special education)

Who can be an Education Rights Holder?

Person with authority to make decisions in special education cases (i.e. the “Parent” 20 USC 1401(23); 34 CFR 300.30. • Bio/Adoptive Parent 34 CFR 300.30(a)(1)• Foster Parent 34 CFR 300.30(a)(2)• Guardian (but not state if state is guardian) 34 CFR 300.30(a)(3) • Individual in place of bio/adoptive parent with whom child lives

or person legally responsible 34 CFR 300.30(a)(4)• Surrogate Parent 34 CFR § 300.30(a)(5); 300.519 • Somebody from (1)-(4) a identified in judicial order. • Student over 18 years old, but not yet emancipated 34 CFR §

300.520

Who is your client and can you decide?

May depend on how you become involved in case.• Already represent either the child or “parent” when education issue

arises.– Appointed to represent a client (parent-child) – Retained to represent a client (parent-child-foster parent).

• Contractual arrangement (with a funder or child welfare agency) to represent children in foster care or children in delinquency cases.

– ABA RPC 5.4(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

Sometimes you can make this decision for your firm or agency.Sometimes you may need a waiver.

Comparison to School Discipline

• No federal regulation on who is rights holder. – The child may have a more central role, as with

juvenile delinquency proceedings• Can state agency retain you• Court appointment• Other arrangement

– Retainer, agreement to represent with public defender office.

In a discipline case you will most likely need to represent the child.

• Why?– These cases are akin to delinquency cases.– The child will be your primary source of information

for the case and likely your star witness. The child is very unlikely to tell you the truth if there is no attorney-client privilege if a parent or foster parent is the client.

• What if you are already representing the parent?– You will need a waiver

The decision of whether to represent the child or education rights holder is far less

clear in a special education case• Arguments for representing the ward:

– Placement is constantly changing, as is the education rights holder. The ward remains your client.

– Foster parent may not have made the referral for your services or be invested in your services.

– Surrogates: absence of connection to child/knowledge of background.

• Arguments for representing the ed rights holder:– This person holds the rights.– May be difficult to establish an attorney-client relationship

with a young child or a child with certain disabilities.

Professional RulesRule 1.14 Client With Diminished Capacity• (a) When a client's capacity to make adequately considered decisions in

connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer

• (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter.

Authority to Represent the Child

• Authority to represent the child– If you are retained through a state social services agency

contract or other agreement, contract may designate the ward as your client.

– Permission from education rights holder– You may receive a court order from the juvenile court

judge, assigning you to the education case.• What is role in appointment: GAL/Attorney

– Can the child “retain” you on his/her own.• Ability to contract• Ability to form attorney client relationship

Purposes of retainer generally in Education Cases

• Confirms approval of scope of representation– IEP, MDR, Domain, Peer Jury, Expulsion Hearing– Whether you commit to file due process, if necessary.– Appeal: SpEd: School Decision >Due Process; Due Process to Court

Expulsion: Hearing > Board >Court

• It clarifies who client is and roles and responsibilities.• Fees and costs

– Any client fees. What about attorney fees under IDEA for prevailing.– Disclose when somebody other than client is paying. See RPC 1.8(f)

• Defines how relationship ends.

An example: Special Education Retainer with Foster parent/surrogate where agency retains

you to represent child.• Articulates that the child and not the foster parent/surrogate is the

client.• Articulates that the foster parent/surrogate is granting permission for

you to represent the child as the client.• States that another party (the state) is paying for the representation.• Outlines role of a foster parent as decision authority, along with any

possible exceptions/conflicts.• If state places educational responsibilities upon foster parents, state

those, and whether not following them is cause for ending the relationship. E.g. 89 Ill. Admin. Code 314.

• Fee/No Fee. Attorney fees clause.• Is it an agreement or a retainer?• Does it supersede the contract hiring your agency?

Know your Allies: Assembling your Team

Foster youth have a large number of professionals in their lives. Know who they are

and how they might prove usefulFoster Parents

Caseworkers - Attorney – GALPsychologist – Therapist – Psychiatrist – Early

Childhood – Pediatrician - CASA

Knowing Your Allies: Case workers• Source of Referrals- Train professionals so that they will know when

to refer cases, make requests for special education testing, etc. These professionals are on the front lines of identification.

• Requesting special education evaluation: Depending on the state, the case worker may be able to legally request a case study evaluation for a student with suspected special education needs. – E.g. Illinois expands who can request a CSE beyond 34 CFR 300.301(b)

Employee of a community service agency (23 Ill Ad. Code 226.110(b).– E.g. in California, only a parent, guardian, foster parent, or

teacher/service provider may make such a request. (EC § 56029) • Source for Outside Evaluations & Other records: The case worker may

be able to request outside evaluations or get releases for you to view evaluations already completed by the state CPS/DCFS

Knowing your Allies: Foster Parents

• Different foster parents have different commitment. – Connection to child.– Relative v. non-relative.

• May be changing, if multiple foster parents. Your work may help stabilize placements. (Advocacy part of BH Settlement.)

• Steps you can take– Determine the foster parent’s level of training.– Determine the foster parent’s level of advocacy.– Teach importance of involvement.

Knowing your Allies: Educational Surrogate Parent

http://www.isbe.state.il.us/spec-ed/html/surrogate_parent.htm

Educational Surrogate Parent, (continued)

Knowing your Allies: Child Protection Court Professionals

• Guardian ad litem (GAL), • Attorney for Child, • Court Appointed Special Advocate (CASA), • Child representative,• Public Defender• Probation Officer, • Caseworker, • Educational liaison/advocate, etc.

Clinical Professionals

• Social worker, • Talk therapist, • Play therapist, • Psychologist,• Psychiatrist,• Behavioral coach• Trauma focused pediatrician, • Medical specialist, etc.

Meeting your Foster Youth/Ward Client

• Prepare to make a home visit• Client may be used to having an attorney

– Conducting yourself professionally• The issue of taking control over one’s life is

very relevant for this clientele– Can help convince an older teen to cooperate with

special education services being offered.– How to facilitate this in attorney client relationship.

Special Provisions Applied to Wardsthat can help your case

• Fostering Connections: Educational stability is promoted through the Fostering Connections to Success and Increasing Adoptions Act of 2008.– Many states have enacted their own legislation, which builds on this

federal mandate, by providing additional educational protections for Wards, including but not limited to:

• Expansion of McKinney Vento Homeless student protections to apply to all foster youth

• Requirements on school districts and DCFS agencies re: transfers of records• Partial credit transfers• In California, see AB 490

– For more information on Fostering Connections, as well as state-specific provisions, see: http://www.fosteringconnections.org/resources/topic?id=0002

Other Resources for Wards

• Additional resources for obtaining outside evaluations

• Access to juvenile courts and orders by juvenile court judges.

Obstacles for Foster Youth

• Multiple placements• Mandatory services, court dates, family

visitation outside of the educational setting• Lost documentation• School “pushout”• “Time out of school”• Cookie cutter placements• Institutional challenges

Unique Challenges Related toLow Expectations and Resources

• Low overall performance by a student body used as an excuse not to qualify your client for services

• Low expectations by the client• Sometimes these similarly low expectations by

the school may work to your advantage in litigation.

Utilizing Educational Advocacy to Assist Wards.

•Independent Educational Evaluations•School Placements that Meet Their Needs•Preventing Expulsions

–Special Education/MDR Process–Expulsion Hearing Process

•In School Services

Impacting the System Examples

• Newspaper Articles: Relative Guardian: “Counsel, are you going to drive the bus.”

• Compliance Complaint: District Policies of Ignoring IEPs requiring Therapeutic Day.

• Impact of your agency’s reputation expanding its impact.• Coalition building with Other Agencies on Issues

– Special Education– School Discipline

• Raising awareness of issues– State and Private Social Service Agencies – A two way street

• Client stories