Making Best Interest Decisions “Child Welfare, Education and the Courts: A Collaboration to Strengthen Educational Successes of Children and Youth in Foster Care” November 4, 2011

Outline for Presentation Overview of Best Interest Decisionmaking Fostering Connections State Implementation Considerations State Implementation Examples Oregon Virginia Tools and Resources

Listserv, Conference Calls, Publications, Searchable Database Collaboration between American Bar Association, Education Law Center, and Juvenile Law Center, in collaboration with Annie E. Casey Foundation, Casey Family Programs, and Stuart Foundation. A national technical assistance resource and information clearinghouse on legal and policy matters affecting the education of children and youth in out-of-home care. Website: www.ambar.org/LegalCenter Listserv, Conference Calls, Publications, Searchable Database Presenters should clarify that LCFCE works to support the educational success of all youth in out-of-home care, whether or not they are MV eligible. The goals on the following slides are critical for all youth. 3 3

Fostering Connections to Success and Increasing Adoptions Act of 2008 Amends Title IV (Parts B and E) of the Social Security Act Broad-reaching amendments to child welfare law; requires court oversight Important provisions promoting education stability and enrollment for youth in care Changes child welfare law, but cannot be fully realized without collaboration from education system Kelly

Presumption: Same School The child’s case plan must include “(I) an assurance that the state [or local child welfare agency] has coordinated with appropriate local education agencies … to ensure that the child remains enrolled in the school in which the child was enrolled at the time of placement” 42 U.S.C.A. 675(1)(G)(ii). Kelly 5

Presumption: Same School If remaining in the same school is not in the best interest of the child, the child’s case plan must include “(II) … assurances by the State agency and the local education agencies to provide immediate and appropriate enrollment in a new school, with all of the education records of the child provided to the school.” 42 U.S.C.A. 675(1)(G)(ii).

ACYF-CB-PI-10-11 July 9, 2010 – Program Instruction Education Stability Plan must be a written part of the case plan, reviewed every 6 months. Agency could invite school personnel, agency attorneys, guardians ad litem, youth, etc. to discussions about the education stability plan. Agency is encouraged to develop standard and deliberate process for determining best interest and properly documenting the steps taken to make the determination. Kelly DCF will soon begin amending Chapters 65C-28, 29 and 30 of the Florida Administrative Code, and will include these educational requirements in its rulemaking. 7 7

Elements of Best Interest Decisionmaking Process Seeking input from stakeholders Establishing the criteria for decision (not cost) Sample Form: www.ambar.org/LegalCenterTOOLKIT Resolving disputes

Additional State Considerations Overlap with McKinney-Vento best interest decisionmaking Right to remain in the same school Ensuring “immediate and appropriate enrollment” With records

Oregon and Virginia A Tale of Two States

Promoting Education Stability for Children in Foster Care: HB 3075 & the Oregon Experience Brian V. Baker, Staff Attorney Juvenile Rights Project, Inc. Portland, Oregon

The Problem: lack of academic success 83% of children in foster care are held back in school by the third grade; 46% of youth in foster care do not complete high school; 75% of youth in foster care are working below grade level. Children’s Law Center of Los Angeles.

The Problem: student/school mobility Student mobility negatively impacts reading and math skills acquisition; and diminishes prospects for high school graduation; School mobility between 1st and 8th grade increases the odds of dropping out of school during high school. It takes a child 4 to 6 months to recover academically from the disruption of a school change. Russell W. Rumberger, ERIC/EECE Publications EDO-PS-02-1, June, 2002.

The problem: foster care moves 32.3% of NW foster care alumni experienced 8 or more foster placements; 65% of NW foster care alumni experienced 7 or more school changes from elementary through high school; 30% had 10 or more school changes from elementary through high school. Improving family foster care: Findings from the NorthWest Foster Care Alumni Study. Seattle, WA: Casey Family Programs. Available at http://www.casey.org.

The Problem: Long-Term Impact of High Student Mobility Lower Achievement Levels Slower Academic Pacing Reduced likelihood of H.S. completion Decrease in social/educational attachments to fellow students Teaching/teacher satisfaction suffer due to less stable school environment

Educational Profile:children & youth in foster care Children of Color are overrepresented in foster care, special education and school disciplinary proceedings; Special Education referral rates are three times greater for students in foster care than non-court involved students. (30%-50%) of children in foster care are eligible for special education. Source: Cynthia Godsoe, Caught between Two Systems: How ExceptionalChildren in Out-of-Home Care are Denied Equality in Education Yale Law and Policy Review (2000). Tree House: The Foster Care Project, Seattle, WA. (1999).

Educational Profile: children & youth in foster care Foster children with disabilities in Portland have lower GPA’s; have higher rates of alternative education placement; are exempted at higher rates from state testing; and experience greater numbers of education placements than similarly situated peers with the same disabilities who are not in out-of-home care. Sarah Geenen, Ph.D. Center for Self-Determination, Oregon Health Sciences University (2002).

The Solution: HB 3075 (ORS 339.133(4) ) Decreases school mobility; Increases academic achievement, graduation rates and overall well-being; Good public policy; Individualized best-interest determinations; Transportation to school of origin.

The Solution: HB 3075 Amends state residency statute, ORS 339.133(4), Oregon’s school residency statute, to permit a child or youth in foster care to remain in the school he/she attended prior to placement in foster care, or through change of placement, if the juvenile court deems it in the child or youth’s best interest.

HB 3075: Best Interest The Best Interest determination embodied in HB 3075 if very flexible: juvenile court orders may be entered ex-parte or after hearing. The court may take testimony from the parties to the juvenile court case and from the community, including school district input.

HB 3075: Best Interest HB 3075 does not delineate criteria for the best interest determination. However, courts may consider travel distance (between school and foster home), child’s current programming and benefits of placement in the new district school, connection to staff and peers in the old school, transportation, and child’s health and safety.

HB 3075: funding and federal law HB 3075 maintains the child’s residency in the last school district attended. This permits continuation of state school funding to that district for services for the child/youth. HB 3075 does not override district special education placement determinations. The IEP team makes these placements. HB 3075 directs which district has special education responsibility for the child/youth.

HB 3075: Transportation The bill requires the state child welfare agency to provide transportation to school of origin through a reservation of system of care flex funds for the 2005-2007 biennium. The agency allocated $350K for this purpose to serve a projected 375 children each year.

HB 3075 Transportation In the 07-09 biennium, the state legislature set aside 700K for HB 3075 transportation as a separate line-item in the state Department of Human Services budget. With this infusion of state general fund dollars, the Department will no longer draw from flexible funds to pay transportation costs under the bill.

HB 3075: records and placement preference The bill requires sending and receiving school districts to expedite school records transfers for children in foster care, (five days to request and five to send.) The adds a placement preference for children entering care to be placed near their school of origin to maintain school residency.

HB 3075 Recap HB 3075 became law in July, 2005. The state Department of Human Services expended approximately $210,000 in transportation costs during the 2005-2007 biennium, ending June, 2007. In a November, 2006 report to the state legislature, DHS acknowledged the importance of school stability for children in care.

HB 3075 Recap The DHS legislative report noted further that in addition to transportation funding, the department must have local resources available to purchase transportation through public transportation systems, utilization of volunteer programs, foster parent availability and department staff, in order to meet the goals of the legislation.

Virginia’s Story A little history FCA and creation of an implementation task force Best Interest process Dispute resolution

A little history… 2005 – SB 1006 2006 – reconvene & discuss 2009 – Joint VDSS and VDOE task force created 2010 – Joint guidance and forms 2010-11 – joint training and refinement (on-going)

Implementation Task Force VDSS VDOE Legal advocate (JustChildren) Others invited: foster parents, LDSS & LEA staff, CSA, other state and regional staff

Important factor: Willingness To build trust and relationships To offer ideas To get something on paper To ask local folks for input

Outcomes Changes to Code of Virginia (July 2011) Joint Guidance* & forms Webinars Regional Training * Refining special education issues

Code of Virginia 63.2-900.3 Enrollment and school placement of children in foster care Requires the LDSS prior to making a foster care placement to determine in writing, jointly with the LEA whether it is in the child’s best interest to remain enrolled at the school in which he was enrolled prior to the most recent foster care placement. The Regulations Governing Special Education Programs for Child with Disabilities in Virginia address the issue at 8 VAC 20-81-30 B. 8 where the regulation specifically states that a student with a disability is deemed to reside in the school division where the student is placed in foster care or other custodial care.

Code of Virginia 22.1-3.4 Enrollment of certain children placed in foster care (Revised)- B. The sending and receiving school divisions shall cooperate in facilitating the enrollment of any child placed in foster care across jurisdictional lines for the purpose of enhancing continuity of instruction. The child shall be allowed to continue to attend the school in which he was enrolled prior to the most recent foster care placement, upon the joint determination of the placing social services agency and the local school division that such attendance is in the best interest of the child.

Joint Guidance Documents & Forms VDOE/VDSS Joint Guidance On School Placement For Children In Foster Care Best Interest Determination for Foster Care School Placement Form Immediate Enrollment of Child in Foster Care Form Publicized through Supt. Memos, VDSS alerts, FC Manual, & training Further guidance with regard to students with disabilities is in development.

Involve schools early

Including School Information in LDSS Decision on Residence LDSS shall notify current school that child is moving to a new residence. School shall provide LDSS information on appropriateness of child’s current school placement via: Phone, email, sharing school documents LDSS Family Partnership Meeting on placement decision

Including School Information in LDSS Decision on Residence LDSS determines most appropriate residence for child: Child’s safety and permanency plan is paramount Appropriateness of child’s current educational setting Proximity (distance from potential residences) to child’s current school Other critical factors LDSS notifies school division representative for child’s current school of residence placement decision

Joint Determination of Child’s Best interest for School Placement

Joint Determination Child’s Best Interest As quickly as possible (e.g., within 3 business days), LDSS and LEA shall jointly determine child’s best interest for school placement Presumption: Child will remain in same school, unless contrary to child’s best interests Two options: Remain in school where child was enrolled when placed in new residence Enroll in school of child’s new residence

Engaging Key Partners Essential members in team determination process:  Child Child’s birth parent(s) or prior custodian Individual the child would like to attend Service worker School division representative Others deemed essential to the child IEP team members (if appropriate)

Joint Determination Form LDSS and LEA use form to jointly determine child’s best interest for school placement Addresses essential child, family, and educational factors: Child’s safety and permanency plan shall be paramount FAPE is essential consideration for students with disabilities

Additional factors include, but not limited to: Preferences of child, birth parents, or prior custodians as appropriate, and resource parents or current placement provider. School stability and educational continuity for child, time in school year, and distance from child’s current school to new placement. For students with disabilities additional processes and factors are to be included and considered in the decision making.

Additional factors (continued) School safety, attendance, academic strengths and weaknesses, instructional needs, and social involvement of the child in current school Impact transferring child to new school may have on child’s needs and progress academically, emotionally, socially and physically Solutions addressing any practical issues identified, such as travel to child’s current school from new residence

Special Considerations for Children with Disabilities Placed Across Jurisdictional Lines Virginia Special Education Regulations provide that where a student is placed in foster care, the school division responsible for the child’s free appropriate public education is the division where the foster home is located

RESOLVING SCHOOL PLACEMENT DISPUTES

Resolving Disputes: LDSS and LEA disagree on best interest Student remains in same school LDSS and LEA reps work together to resolve dispute Within 5 work days of best interest determination: LDSS supervisor and LEA administrator resolve If not, submit written request to LDSS director & LEA Supt: Best interest determination form Reasons for agreement or disagreement Additional pertinent information Efforts made to resolve dispute

Resolving Disputes LDSS director and LEA superintendent (or their designees) resolve Within ten work days of written request: If not, LDSS and LEA obtain guidance and technical assistance from respective state agencies. VDSS – Regional Permanency Consultants

Legal Center for Foster Care and Education Resources www.ambar.org/LegalCenterMATERIALS Fostering Connections Toolkit McKinney-Vento and Fostering Connections Overlap Series Data and Information Sharing (Manual and Tools) Searchable Database

Contact Information Kristin Kelly, J.D., Staff Attorney, ABA Center on Children and the Law, Legal Center for Foster Care and Education www.ambar.org/LegalCenter Kristin.Kelly@AmericanBar.Org Brian Baker, J.D., Lead Resource Attorney, Youth, Rights & Justice, Attorneys at Law (formerly Juvenile Rights Project, Inc.) Brian.B@youthrightsjustice.org Patricia Popp, Ph.D., State Coordinator, Project HOPE-VA, Clinical Associate Professor, School of Education, The College of William and Mary pxpopp@wm.edu, http://hope.wm.edu