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

 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: Listserv, Conference Calls, Publications, Searchable Database

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

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).

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 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.

Elements of Best Interest Decisionmaking Process  Seeking input from stakeholders  Establishing the criteria for decision (not cost) Sample Form:  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

A TALE OF TWO STATES Oregon and Virginia

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; 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; 46% of youth in foster care do not complete high school; 75% of youth in foster care are working below grade level. 75% of youth in foster care are working below grade level.

The Problem: student/school mobility Student mobility negatively impacts reading and math skills acquisition; and diminishes prospects for high school graduation; Student mobility negatively impacts reading and math skills acquisition; and diminishes prospects for high school graduation; School mobility between 1 st and 8 th grade increases the odds of dropping out of school during high school. School mobility between 1 st and 8 th 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. It takes a child 4 to 6 months to recover academically from the disruption of a school change.

The problem: foster care moves 32.3% of NW foster care alumni experienced 8 or more foster placements; 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; 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. 30% had 10 or more school changes from elementary through high school.

The Problem: Long-Term Impact of High Student Mobility Lower Achievement Levels Lower Achievement Levels Slower Academic Pacing Slower Academic Pacing Reduced likelihood of H.S. completion Reduced likelihood of H.S. completion Decrease in social/educational attachments to fellow students Decrease in social/educational attachments to fellow students Teaching/teacher satisfaction suffer due to less stable school environment 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; 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. 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. (30%-50%) of children in foster care are eligible for special education.

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. 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.

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

The Solution: HB 3075 Amends state residency statute, ORS (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. Amends state residency statute, ORS (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. 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 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 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 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 biennium. The agency allocated $350K for this purpose to serve a projected 375 children each year. 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 biennium. The agency allocated $350K for this purpose to serve a projected 375 children each year.

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

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. Code of Virginia

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. Code of Virginia

 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 Joint Guidance Documents & Forms

INVOLVE SCHOOLS EARLY

 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, , 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 Including School Information in LDSS Decision on Residence

JOINT DETERMINATION OF CHILD’S BEST INTEREST FOR SCHOOL PLACEMENT

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 Joint Determination Child’s Best Interest

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) Engaging Key Partners Essential members in team determination process:

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 Joint Determination Form

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. Additional factors include, but not limited to:

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 Additional factors (continued)

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 Special Considerations for Children with Disabilities Placed Across Jurisdictional Lines

RESOLVING SCHOOL PLACEMENT DISPUTES

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 and LEA disagree on best interest

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 Resolving Disputes LDSS director and LEA superintendent (or their designees) resolve

Legal Center for Foster Care and Education Resources  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  Brian Baker, J.D., Lead Resource Attorney, Youth, Rights & Justice, Attorneys at Law (formerly Juvenile Rights Project, Inc.)  Patricia Popp, Ph.D., State Coordinator, Project HOPE-VA, Clinical Associate Professor, School of Education, The College of William and Mary