Making Best Interest DecisionsMaking Best Interest Decisions

““Child Welfare, Education and the Courts: A Child Welfare, Education and the Courts: A Collaboration to Strengthen Educational Collaboration to Strengthen Educational

Successes of Children and Youth in Foster Successes of Children and Youth in Foster Care”Care”

November 4, 2011November 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: www.ambar.org/LegalCenter 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-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.

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

A TALE OF TWO STATESOregon and Virginia

Promoting Education Promoting Education Stability for Children in Stability for Children in

Foster Care: HB 3075 & the Foster Care: HB 3075 & the Oregon ExperienceOregon Experience

Brian V. Baker, Staff AttorneyBrian V. Baker, Staff Attorney

Juvenile Rights Project, Inc.Juvenile Rights Project, Inc.

Portland, OregonPortland, Oregon

The Problem: lack of academic The Problem: lack of academic successsuccess

83% of children in foster care are 83% of children in foster care are held back in school by the third held back in school by the third grade;grade;

46% of youth in foster care do not 46% of youth in foster care do not complete high school;complete high school;

75% of youth in foster care are 75% of youth in foster care are working below grade level.working below grade level.

The Problem: student/school The Problem: student/school mobilitymobility

Student mobility negatively impacts Student mobility negatively impacts reading and math skills acquisition; and reading and math skills acquisition; and diminishes prospects for high school diminishes prospects for high school graduation;graduation;

School mobility between 1School mobility between 1stst and 8 and 8thth grade grade increases the odds of dropping out of increases the odds of dropping out of school during high school.school during high school.

It takes a child 4 to 6 months to recover It takes a child 4 to 6 months to recover academically from the disruption of a academically from the disruption of a school change.school change.

The problem: foster care movesThe problem: foster care moves

32.3% of NW foster care alumni 32.3% of NW foster care alumni experienced 8 or more foster experienced 8 or more foster placements;placements;

65% of NW foster care alumni 65% of NW foster care alumni experienced 7 or more school changes experienced 7 or more school changes from elementary through high school;from elementary through high school;

30% had 10 or more school changes 30% had 10 or more school changes from elementary through high school.from elementary through high school.

The Problem: Long-Term Impact of The Problem: Long-Term Impact of High Student MobilityHigh Student Mobility

Lower Achievement LevelsLower Achievement Levels Slower Academic PacingSlower Academic Pacing Reduced likelihood of H.S. completionReduced likelihood of H.S. completion Decrease in social/educational Decrease in social/educational

attachments to fellow studentsattachments to fellow students Teaching/teacher satisfaction suffer Teaching/teacher satisfaction suffer

due to less stable school due to less stable school environmentenvironment

Educational Profile:children & youth Educational Profile:children & youth in foster care in foster care

Children of Color are overrepresented Children of Color are overrepresented in foster care, special education and in foster care, special education and school disciplinary proceedings;school disciplinary proceedings;

Special Education referral rates are Special Education referral rates are three times greaterthree times greater for students in for students in foster care than non-court involved foster care than non-court involved students.students.

(30%-50%) of children in foster care (30%-50%) of children in foster care are eligible for special education.are eligible for special education.

Educational Profile: children & Educational Profile: children & youth in foster careyouth in foster care

Foster children with disabilities in Foster children with disabilities in Portland have lower GPA’s; have higher Portland have lower GPA’s; have higher rates of alternative education rates of alternative education placement; are exempted at higher placement; are exempted at higher rates from state testing; and rates from state testing; and experience greater numbers of experience greater numbers of education placements than similarly education placements than similarly situated peers with the same situated peers with the same disabilities who are not in out-of-home disabilities who are not in out-of-home care. care.

The Solution: HB 3075 (ORS The Solution: HB 3075 (ORS 339.133(4) )339.133(4) )

Decreases school mobility;Decreases school mobility; Increases academic achievement, Increases academic achievement,

graduation rates and overall well-graduation rates and overall well-being;being;

Good public policy;Good public policy; Individualized best-interest Individualized best-interest

determinations;determinations; Transportation to school of origin.Transportation to school of origin.

The Solution: HB 3075 The Solution: HB 3075

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

HB 3075: Best Interest HB 3075: Best Interest

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

HB 3075: Best InterestHB 3075: Best Interest

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

HB 3075: funding and federal lawHB 3075: funding and federal law

HB 3075 maintains the child’s residency in HB 3075 maintains the child’s residency in the last school district attended. This the last school district attended. This permits continuation of state school permits continuation of state school funding to that district for services for the funding to that district for services for the child/youth. child/youth.

HB 3075 does not override district special HB 3075 does not override district special education placement determinations. The education placement determinations. The IEP team makes these placements. HB IEP team makes these placements. HB 3075 directs which district has special 3075 directs which district has special education responsibility for the child/youth.education responsibility for the child/youth.

HB 3075: TransportationHB 3075: Transportation

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

HB 3075 TransportationHB 3075 Transportation

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

HB 3075: records and placement HB 3075: records and placement preferencepreference

The bill requires sending and The bill requires sending and receiving school districts to expedite receiving school districts to expedite school records transfers for children school records transfers for children in foster care, (five days to request in foster care, (five days to request and five to send.)and five to send.)

The adds a placement preference for The adds a placement preference for children entering care to be placed children entering care to be placed near their school of origin to near their school of origin to maintain school residency. maintain school residency.

HB 3075 RecapHB 3075 Recap

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

HB 3075 RecapHB 3075 Recap

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

* Refining special education issues

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.

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.

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, email, sharing school documents LDSS Family Partnership Meeting on

placement decision

Including School Information inLDSS 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 inLDSS 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

 ChildChild’s birth parent(s) or prior custodianIndividual the child would like to attendService workerSchool division representativeOthers deemed essential to the childIEP 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 RESOLVING SCHOOL PLACEMENT DISPUTESPLACEMENT 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 formReasons for agreement or disagreementAdditional pertinent informationEfforts 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 DisputesLDSS director and LEA superintendent

(or their designees) resolve

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/LegalCenterKristin.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