Education Advocacy for Children in Foster Care

145 Pages·2004·0.56 MB·English

by  Diane Buric

Learning
Education Advocacy
for Children in
Foster Care
By Kathleen M. McNaught
with a Foreword by the Honorable Constance Cohen
Edited by Claire Sandt
ABA Center on Children and the Law
National Child Welfare Resource Center on Legal and Judicial Issues
…a program of the Children’s Bureau
Washington, DC
Copyright © 2004 American Bar Association
ISBN 1-59031-408-5
This book was made possible in part through a grant to the National Child Welfare
Resource Center on Legal and Judicial Issues by the U.S. Department of Health and
Human Services, Children’s Bureau.
The views expressed herein have not been approved by the House of Delegates or the
Board of Governors of the American Bar Association or the United States Department
of Human Services, Children’s Bureau, and accordingly, should not be construed as
representing the policy of the American Bar Association or the Children’s Bureau.
Printed in the United States of America.
Library of Congress Cataloging-in-Publication Data
McNaught, Kathleen M., 1969–
Learning curves: education advocacy for children in foster care / by Kathleen M.
McNaught; with a foreword by Constance Cohen; edited by Claire Sandt.
p. cm.
Includes index.
Portions of this book appeared in a different format in ABA Child Law Practice,
published by the ABA Center on Children and the Law.
ISBN 1-59031-408-5 (pbk.)
1. Foster children—Legal status, laws, etc.—United States. 2. Foster children—
Education—United States. I. ABA child law practice. II. Title.
KF3736.5.M36 2004
371.825’4—dc22
2004016362
Portions of this book appeared in a different format in ABA Child Law Practice, published
by the ABA Center on Children and the Law.
Graphic design by Diane Buric Design & Illustration, Silver Spring, MD.
ii
TABLE OF CONTENTS
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Preface. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
About This Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
Chapter 1:
Key Education Issues and Roles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Chapter 2:
Education Law Primer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Chapter 3:
Navigating the Special Education Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Chapter 4:
Meeting the Education Needs of Young Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Chapter 5:
School Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Chapter 6:
Creative Ways to Meet Education Needs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Appendices
A: General Advocacy Tips and Practitioners’ Roles. . . . . . . . . . . . . . . . . . . . . . . . . . . 122
B: Key Education Resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
C: Key IDEA Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
D: Psychological Tests and Assessments: A Quick Reference,
by Ronald S. Polomares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
About the Author. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
iii
Foreword
O
n any given day there are more because it was the visit to the airport that
than 500,000 children in foster prompted Jack and his adoptive father to
care placement in the United agree to spend time during the summer
States. When the juvenile court system honing Jack’s math skills.
invades a child’s life, a judge is charged Jack’s is a simple story. Every day in our
with the duty to protect the child’s safety child welfare system there are complicated
and well-being. To fulfill that duty, the scenarios that demand a working knowl-
court must rely on information collected edge of more esoteric nuances of the world
from many sources: the child, the child’s of education. Few system stakeholders are
parents, the child welfare agency, the equipped to comprehend the significance
child’s advocates, the school, and direct of FERPA, the Chafee Foster Care
providers, to name a few. Independence Act, IEPs, Part C of the
A judge who fails to recognize the IDEA, EPSDT, or a manifestation hearing.
important role of education in the life of a (Don’t panic…the book will explain these
child from birth through adulthood may acronyms.)
miss an opportunity that could alter the Yet without a fundamental understand-
course of that child’s life. ing of these issues, how can those of us who
“Jack” is a case in point. Jack came into are entrusted with a child’s well-being
the juvenile court system as a 10-year-old make sound recommendations and deci-
child whose father was a methampheta- sions for the child?
mine addict and whose mother physically Children who are removed from their
abused him. During the case, Jack families and placed in a stranger’s home,
appeared in court several times. He with no warning, are children whose lives
expressed his need for a safe and loving are turned upside down through no fault of
family. Jack and the judge spoke of many their own. Who among us would thrive in
things: pets, motorcycles, and, of course, an unknown place not of our choosing
school. The judge requested Jack’s school with mysterious rules, customs, sounds,
records. Jack’s grades did not reflect his and smells? We in the child welfare system
abilities, and the judge told him she was have the power to minimize trauma by
disappointed; he could do better. maintaining or obtaining educational sta-
In the meantime, Jack’s attorney discov- bility and opportunity.
ered his affinity for airplanes and arranged for To meet the needs of our nation’s most
a military pilot to spend time with him at the vulnerable children, noneducators in the
airfield. Jack had the opportunity to operate system must first learn what questions to
an F-16 simulator. The pilot emphasized the ask. This book will help assure that the
importance of math in his profession. children whose lives are entrusted to us
On his adoption day, the judge learned have every opportunity to soar.
that Jack had raised all of his grades to As,
except for a B in math. The adoptive par-
ents thanked the judge for her interest in
his grades because it was her conversation Judge Constance Cohen
with Jack that had motivated him to study Associate Juvenile Judge
harder. They also thanked Jack’s attorney Fifth Judicial District of Iowa
iv
Preface
I
will always remember my early days at During my remaining years at Legal Aid
Legal Aid as a new attorney represent- and my subsequent years in private prac-
ing children in the foster care system in tice, my knowledge of education law
Maryland. Within those first few weeks I increased. The more I learned, the more I
received my first request from a caseworker wished I could turn back time and use my
to attend a school meeting with her on new knowledge to do more for some of
behalf of one of my clients. I spent the those early clients. This book is the culmi-
night before the meeting reading our nation of two of my greatest interests: to
office’s IDEA manual and off I went. improve the lives of youth in the foster
While I do recall my presence as an care system and to ensure that these youth
attorney at the meeting drew some atten- receive quality educations that will help
tion and provided some benefit, I also ensure a bright future. My wish is that this
remember feeling overwhelmed by the book will make the very difficult jobs of
amount of information that was being judges, lawyers, caseworkers, foster parents
shared, the acronyms that were being ban- and anyone who is dealing with education
tered about, and the feeling that my young issues for youth in the child welfare system,
10-year-old client was being lost in the a little easier and their role in the process
process. clearer.
—Kathleen M. McNaught
v
Acknowledgements
A
huge thanks to Claire Sandt, not Gerber, Leslie Heimlov, Lynn Katz, Nellis
just for her skills as an editor, but Kim, Miriam Krinsky, Katherine Locker,
for her incredible guidance, sup- Leslie Said Margolis, the Honorable
port, patience, and humor. This book Juliette McKenna, Andrea Moore, and
would not have been possible without her Debbie Winters.
talents. Special thanks to Ron Palomares for
To our terrific internal review team, contributing a piece to the book and for
including Mark Hardin, Mimi Laver, his thoughtful comments and insights
Jennifer Renne, Cecilia Fiermonte, provided from the school psychologist
Andrea Khoury, and Althea Izawa- perspective.
Hayden, for all of their time and efforts to Thanks to Center interns Lauren
assist in making these materials the best Onkeles, Adrianne Eckman, and Maya
they can be. Additional internal support Bassford, for all of their research, proofing,
was provided by Samia Noursi, Howard cite checking and overall support.
Davidson, Lisa Waxler, and Yvonne Thanks to Emily Cooke, our federal
Brunot. project officer for the Resource Center on
To a wonderful group of individuals who Legal and Judicial Issues for allowing this
reviewed the various chapters of this book, book to be possible.
provided valuable feedback and insight, Special thanks to my husband Bob, my
including: Ann Barker, the Honorable family, and friends for their love and sup-
Patricia Martin Bishop, the Honorable port throughout the writing of this book.
Constance Cohen, Sheryl Dicker, Judy
vi
About this Book
T
his book is a tool for child welfare intervene and get children on a healthy
advocates to meet the education developmental path so they are ready to
needs of children in foster care. A learn. This chapter explains how to access
solid education can help these children early childhood programs and services,
transcend their circumstances and succeed including health care services, child care
in life. It should be a priority for all advo- services, and services for children identi-
cates in the child welfare system. Anyone fied with a developmental delay or at risk
in a position to advocate for children in of developmental delays.
foster care will benefit from this book. This Chapter 5 explains how school disci-
includes judges, child welfare attorneys, pline policies impact children in foster
foster and adoptive parents, biological par- care. It suggests ways advocates can work
ents, educators, and school staff. with schools to address the underlying
issues a foster child presents that could
Book at a Glance: lead to discipline. It offers tips for ensuring
A glossary defines common education and fair discipline and avoiding long-term
child welfare terms that appear in this harmful effects on academic success.
book. Chapter 6 shares creative approaches to
Chapter 1 presents general education address education barriers for children in
advocacy strategies all child welfare advo- foster care in four areas: direct advocacy,
cates should use in practice to improve courtroom advocacy, legislative advocacy,
educational outcomes for children in foster and interagency collaboration.
care. You’ll also find:
Chapter 2 explains education rights and • At-a-glance practice tips to guide your
key federal laws advocates can use to education advocacy
leverage educational services and programs. • Special education process roadmap
Chapter 3 demystifies the special educa- • Tips from the bench for effective
tion processand offers guidance on deter- education advocacy
mining eligibility for special education • An inside look at the role of foster
services, creating a special education plan, parents as education decision makers
and monitoring and implementing special • Key IDEA regulations at your fingertips
education programming. • Education advocacy resources: websites,
Chapter 4 focuses on the education books, videos
needs of young children. An opportunity • Common psychological tests used to
exists during the early childhood years to evaluate children’s education needs.
vii
Glossary
C
hild welfare advocates should be 4. Child and family services review
familiar with the following educa- (CFSR):
tion advocacy terms. They appear CFSR is a comprehensive federal-state
routinely throughout this book. study of each state’s performance in child
abuse and neglect cases. It examines the
1. Attention deficit hyperactivity performance of the entire state, including
disorder (ADHD): the child welfare agency, the courts, and
A condition that becomes apparent in other key agencies. A large team conducts
some children in the preschool and early the CFSR, including people from the fed-
school years. The principal characteristics eral government and people from the state
of ADHD are inattention, hyperactivity, —including consultants selected by the
and impulsivity. Because many children federal government and by the state. The
may have these symptoms, but at a low CFSR uses multiple sources and types of
level, or the symptoms may be caused by information, including: statewide statis-
another disorder, it is important that the tics; summaries of the state laws, regula-
child receive a thorough examination and tions, rules and policies; intensive file
appropriate diagnosis by a well-qualified reviews; and interviews of a variety of per-
professional. sons and groups who deal with the child
welfare agency, including legal system rep-
2. Behavioral intervention plan (BIP): resentatives. There are several key stages of
Part of a comprehensive plan created by the CFSR: planning stage; statewide
a child’s IEP team that addresses a child’s assessment; onsite review; issuance of the
behavior caused by his or her disability. It Final Report; and creation, implementa-
generally includes regular or alternative tion, and review of the Program
disciplinary measures (i.e., loss of privi- Improvement Plan (PIP).
leges), resulting from particular infractions
of school rules, along with positive behav- 5. Early intervention services (EIS):
ior intervention strategies and supports, as Developmental services provided under
a part of a comprehensive plan to address public supervision designed to meet the
the child’s behavior. developmental needs of an infant or tod-
dler with a physical, cognitive, communi-
3. Free and appropriate public education cation, social, or adaptive disability.
(FAPE): Services include:
Special education and related services • Family training, counseling, and home
provided at public expense, under public visits, special instruction, speech-
supervision and direction, and without language pathology and audiology
charge. A FAPE must meet the standards services, occupational therapy, physical
of the state educational agency and therapy, psychological services, service
include an appropriate preschool, elemen- coordination services, medical services
tary, or secondary school education in the only for diagnostic or evaluation pur-
state involved. poses, early identification, screening,
viii
and assessment services, health services 8. Independent education evaluation
necessary to enable the infant or (IEE):
toddler to benefit from the other; social A subsequent evaluation conducted at
work services, vision services, assistive public expense by a qualified examiner
technology devices and assistive who is not employed by the public agency
technology services, and transportation responsible for the education of the child
and related costs that are necessary in question, when the parent disagrees
to enable an infant or toddler and with the prior evaluation obtained by the
the infant’s or toddler’s family to public agency. If the public agency wishes
receive another service described in to refuse the request for a subsequent eval-
this paragraph. uation, it must obtain a favorable ruling
• EIS are provided by qualified personnel. through a due process hearing.
Services are provided at no cost except
where federal or state law provides for a 9. Individualized education program
system of payments by families, includ- (IEP):
ing a schedule of sliding fees. A written plan for each child with a dis-
20 U.S.C. § 1432(4) ability eligible under IDEA that includes:
(1) a statement of the child’s present
6. Extended school year (ESY): levels of educational performance;
Special education and related services (2) a statement of measurable annual
provided to a child eligible under IDEA goals, including benchmarks or short-term
beyond the normal school year. The public objectives;
agency provides services according to the (3) a statement of the special education
child’s IEP at no cost to the parents of the and related services and supplementary
child. The services must meet the educa- aids and services to be provided to the
tional standards of the state. 34 C.F.R. § child, or on behalf of the child, and a state-
300.309 (b) Extended school year services ment of the program modifications or sup-
ports for school personnel that will be
7. Functional behavioral assessment provided for the child;
(FBA): (4) an explanation of the extent to
A required assessment under IDEA that which the child will not participate with
identifies problem behaviors (as well as the non-disabled children in the regular class
environmental factors and surrounding and activities;
events that contribute to those behaviors) (5) a statement of any individual modi-
and identify appropriate interventions to fications in the administration of State
teach more appropriate behaviors. FBAs or district-wide assessments of student
must be conducted, at a minimum, when a achievement that are needed in order for
child is disciplined by removal from school the child to participate in such assessment;
for over 10 days (or 10 days cumulative if (6) the projected date for the begin-
the removals constitute a pattern), but ning of the services and modifications,
can be used prior to such disciplinary and the anticipated frequency, location,
action if determined by the IEP team to be and duration of those services and
appropriate. modifications;
ix
(7) a statement of needed transition sibilities under this subchapter) who will
services for the child; be responsible for the implementation of
(8) a statement of how the child’s the plan and coordination with other
progress toward the annual goals will be agencies and persons; and
measured and how the child’s parents will (8) the steps to be taken to support the
be regularly informed about the child’s transition of the toddler with a disability to
progress. 20 U.S.C. § 1414 (d) preschool or other appropriate services.
20 U.S.C. § 1436 (d)
10. Individualized family service plan
(IFSP): 11. Interim alternative education setting
Is a written plan containing— (IAES):
(1) a statement of the infant’s or tod- A school setting, approved by a stu-
dler’s present levels of development based dent’s IEP team as an alternative to the
on objective criteria; current school setting, for a period of not
(2) a statement of the family’s resources, more than 45 days, where the student can
priorities, and concerns relating to continue to participate in the general cur-
enhancing the development of the family’s riculum and continue to receive all of the
infant or toddler with a disability; services and modifications provided in the
(3) a statement of the major goals student’s IEP to make progress toward their
expected to be achieved for the infant or IEP goals. An IAES can be used for stu-
toddler and the family dents who have been subject to discipline
(4) a statement of specific early inter- for weapon or drug related offenses, or who
vention services necessary to meet the have been determined by a hearing officer
unique needs of the infant or toddler and to be a danger to themselves or others.
the family
(5) a statement of the natural environ- 12. Least restrictive environment (LRE):
ments in which early intervention services Children with disabilities eligible under
shall appropriately be provided IDEA must be educated with children who
(6) the projected dates for initiation of are not disabled to the maximum extent
services and the anticipated duration of appropriate. Children with disabilities
the services; should only be placed in special classes, or
(7) the identification of the service separate schools, when the nature or sever-
coordinator from the profession most ity of the disability of a child is such that
immediately relevant to the infant’s or tod- education in regular classes with the use of
dler’s or family’s needs (or who is otherwise supplementary aids and services cannot be
qualified to carry out all applicable respon- achieved satisfactorily.
x