III. Parents, Surrogate Parents, and Educational Decision Makers

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When a disabled child is involved in dependency and neglect proceedings, educational needs should be considered from the beginning. The child should have a person who can make educational decisions on his or her behalf. In the child welfare system, determining this person can be complicated, and may require intervention from the courts. Usually the person would be a parent. If the parents of the child are not known, or may not act in the child’s best interests, other alternatives exist.

Various laws determine who is a parent and who can make educational decisions. The authority to make educational decisions is defined more restrictively under IDEA than for general, educational decision-making. Moreover, special education law is structured in such a way that it is crucial that someone act as a parent. Therefore, if no one can be identified as a parent under IDEA rules and regulations, an educational surrogate parent (ESP) should be appointed.

A. “Parent” under IDEA and Accompanying Regulations:

A “parent” under IDEA means:

(A) a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law from serving as a parent);

(B) a guardian (but not the State if the child is a ward of the State);

(C) an individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or

(D) except as used in Sections 1415(b)(2) of this title and 1439(a)(5) of this title, an individual assigned under either of those sections to be a surrogate parent.¹

A “parent” under the Colorado ECEA Rules means:

• “A biological or adoptive parent of a child”;
• “A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent”;
• “A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);”
• “An individual acting in the place of a biological or adoptive parent (including a grandparent, step-parent or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or”
• “An educational surrogate parent who has been assigned. . . .”²

Despite the possibility of others serving as a parent, the biological or adoptive parent is presumed to be the parent unless that parent does not have legal authority to make educational decisions for the child.³ If a court orders a specific person to act as a parent or to make educational decisions on behalf of a child, this person is considered to be the parent for purposes of educational decision-making.⁴

Under the federal regulations, the foster parent may act as the parent in the following circumstances:

• the “natural parent’s authority to make the decisions required of parents under the Act has been extinguished under State law”; and
• the foster parent has “an ongoing, long-term parental relationship with the child”;
• the foster parent is “willing to make the decisions required of parents under the Act; and”
• the foster parent has “no interest that would conflict with the interests of the child.”⁵

The term “extinguished under state law” applies when parental rights have been terminated.⁶ Under these circumstances, “[c]ounty certified foster parents as well as foster parents with private, nonprofit child placement agencies may be able to exercise legal authority over decisions related to special education.”⁷

In a child welfare case, if parental rights have not been terminated, a court may need to consider whether to remove a parent’s educational decision-making authority so that a foster parent or other statutorily authorized person may act as the parent, or so that an educational surrogate parent may be appointed. This decision may depend on whether the parent will act in the child’s best interests.

Best practice in a child welfare case would be to discuss carefully any possible educational decisions with the parents, such as a referral for an evaluation or attendance at IEP meetings. Sometimes parents who are reluctant to cooperate change their minds when their fears about the process have been alleviated. If appropriate, properly exercising educational decision-making rights can be part of the treatment plan.⁸ However, if this process clarifies that the parent is not likely to act in the child’s best interests, the court might consider removing educational decision-making authority from the parent and appointing an ESP.

B. Educational Surrogate Parent (ESP) under IDEA and Regulations

When a child has a disability under IDEA, an educational surrogate parent (ESP) may be appointed if: (1) the parents of the child are not known or cannot be located; (2) the child is a ward of the state; or (3) the child is an unaccompanied homeless youth under the McKinney-Vento Homeless Assistance Act.⁹ This may be necessary if no one fits one of the definitions of a parent under IDEA.

A ward of the state, in Colorado, is a foster child or in the custody of a public child welfare agency. However, if the foster parent meets the definition of “parent” discussed above, the child is not a ward of the State under IDEA/ECEA.¹⁰

1. Definition and Duties of Educational Surrogate Parent (ESP)

In Colorado, an ESP is defined as a person who:

• is not an employee of: the Department of Education, the administrative unit of attendance or residence, a state-operated program, or any other public agency involved in the education or care of the child;
• has no personal or professional interest that conflicts with the interest of the child; and
• has knowledge and skills to ensure adequate representation.¹¹

The duties of an ESP are to represent the child in all matters relating to the “identification, evaluation, and educational placement of the child” and to make certain a free appropriate public education (FAPE) is provided to the child.¹² This includes filing for mediation or due process if necessary.

2. Appointing an Educational Surrogate Parent (ESP)

Primary responsibility for determining whether a child needs an ESP, and for appointing one, is with the administrative unit of attendance or state-operated program.¹³ The state educational agency must make reasonable efforts to ensure the assignment of an ESP within thirty days after the determination that a child needs an ESP.¹⁴ In Colorado, the Special Education Director of the administrative unit is responsible for the actual assignment.¹⁵ The Colorado Department of Education maintains a registry of each child with a disability needing an ESP and the person assigned to that child.¹⁶ Note that, because school districts are locally controlled and act independently, the rules for appointing an ESP may vary from district to district.¹⁷

In addition, the 2004 reauthorization of IDEA specifically allows judges to appoint ESPs. Therefore, the ESP may be appointed either by the Department of Education or, if the child is in the legal custody of the Colorado Department of Human Services (DHS), by the court overseeing the child’s care.¹⁸ Typically, the ESP is selected through the special education office of the school district, which asks the Colorado Department of Education to appoint that person officially. An ESP appointed in this way will have been trained, but will probably not know anything about the child.¹⁹

Best practice is that an ESP is someone, such as a guardian ad litem (GAL), who knows and has a relationship with the child.²⁰ A court may be in a better position to identify such a person, or alternatively, those working with the child may suggest to the school district an appropriate ESP. A guardian ad litem may be the ideal person to serve as an ESP, if the court assigns the GAL responsibility for educational decision-making in a written order.²¹

If the court is considering appointing an ESP, it should check with the Exceptional Student Leadership Unit (ESLU) to see if the child already has an ESP. If the court does appoint an ESP, it should let the ESLU know for its registry.²²

In the case of unaccompanied homeless youth, appropriate staff of emergency shelters and similar facilities may be appointed as temporary ESPs until a permanent ESP can be appointed.²³

An ESP may also be assigned for an infant or toddler under Part C of IDEA.²⁴

Because the ESP may not be an employee of the state educational agency or any other agency involved in the education or care of the child, a case worker or social worker employed by DHS may not be an ESP.²⁵ However, a social worker can still attend and participate in the IEP meeting.²⁶

3. Training for ESPs

The Colorado Department of Education trains ESPs. Best practice is for an ESP to participate in the CDE training, if not already knowledgable about the following areas:

• Understand ESP responsibilities (which are to learn about the student’s educational needs, participate in school meetings, give consent for assessment and initial placement, monitor delivery of services and the student’s development, and represent the student when necessary)
• Learn about relevant laws (IDEA, FERPA, Section 504, NCLB, ADA, Colorado Exceptional Children’s Educational Act (ECEA));
• Learn about the special education process (referral, assessment, IEP development, implementation of services, revision of IEP);
• Learn to communicate with schools (methods, preparation, procedural safeguards and dispute resolution, meeting with other parents); and
• Understand special education terminology and abbreviations.²⁷

A court could choose an ESP from the list maintained by the Colorado Department of Education, or a person who already has a relationship with the child could request the training.

4. Children Without Disabilities

Note that, if a child does not have disabilities, and is not suspected of having disabilities, the court may need to appoint an educational decision-maker, but the process is not nearly as complicated. A general educational decision-maker does not have to meet the specific requirements of IDEA, and need not be an ESP.²⁸ For instance, a caseworker could be an educational decision-maker.²⁹ The school district does not appoint educational decision-makers.³⁰

5. Contrast with “Parent” As Defined Under FERPA

Under FERPA, a parent “includes a legal guardian or other person standing in loco parentis (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the welfare of the child).”³¹ This is a broader definition of “parent” than under IDEA, and child welfare workers may be considered parents to access students’ educational records.³²

Usually, in Colorado, school districts will allow caseworkers to sign a release for school records under FERPA.³³ However, the natural parents also retain rights under FERPA unless the court has revoked those specific rights.³⁴

To see how a person who is not a parent, such as an advocate, may obtain educational records, see the section on FERPA.

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1. 20 U.S.C. § 1401(23) (2008).

2. State Bd. of Educ. Rule 2.33(1), 1 Code Colo. Regs. 301-8 (2009).

3. Rule 2.33(2)(a).

4. Rule 2.33(2)(b).

5. 34 C.F.R. § 303.19.

6. Kathleen McNaught, Learning Curves: Education Advocacy for Children in Foster Care 45 (ABA Center on Children and the Law 2004).

7. Angela J. Herrick & Helen D. Ward, Advocating for the Educational Needs of Children in Out-of-Home Care 4-6 Colorado Department of Human Services.

8. Interview with Laura Writebol, Colorado Department of Human Services (May 14, 2008).

9. 20 U.S.C. § 1415(b)(2)(A) (2005); 34 C.F.R. § 300.519; 42 U.S.C. § 11434a(6) (2002); Rule 2.13.

10. Rule 2.53(1) and (2); 20 U.S.C. § 1401(36).

11. Rule 6.02(8)(e)(iii); 34 C.F.R. § 300.519(d)(2)(ii) and (iii).

12. Rule 6.02(8)(i); 34 C.F.R. § 300.519(g).

13. Rule 6.02(8)(c).

14. 34 C.F.R. § 300.519(h).

15. Rule 6.02(8).

16. Rule 6.02(8)(b).

17. Interview with Laura Writebol, Colorado Department of Human Services (May 14, 2008).

18. 20 U.S.C. § 1415(b)(2)(A)(i); 34 C.F.R. § 300.519(c); Rule 6.02(8)(d).

19. Herrick & Ward, supra note 7 at 4-6.

20. Kathleen McNaught, Mythbusting: Breaking Down Confidentiality and Decision-Making Barriers to Meet the Education Needs of Children in Foster Care 37 (American Bar Association 2005). Available at http://www.abanet.org/child/education/other-pub.shtml (viewed Oct. 15, 2010).

21. Herrick & Ward, supra note 7 at 4-5.

22. Telephone interview with Keith Kirchubel, Principal Consultant, Dispute Resolution, Colorado Department of Education in Denver Colorado (March 2008); contact Jennifer Rodriguez, 303-866-6889, for the ESP registry.

23. 34 C.F.R. § 300.519(f).

24. 20 U.S.C. § 1439(a)(5) (2005).

25. 20 U.S.C. § 1415(b)(2)(A); 34 C.F.R. 300.519(d)(2)(i).

26. Randy Chapman, The Everyday Guide to Special Education Law, 47 (The Legal Center for People with Disabilities and Older People 2005).

27. Email from Keith J. Kirchubel, Principal Consultant, Dispute Resolution, Colorado Department of Education, to Theresa Sidebotham (March 17, 2008, 3:40 p.m.)(on file with author).

28. McNaught, supra note 19 at 9.

29. Id. at 17.

30. Id. at 16.

31. 20 U.S.C. § 1232h(c)(6)(D) (2002).

32. National Council on Disability, Youth with Disabilities in the Foster Care System: Barriers to Success and Proposed Policy Solutions, at 57 (2008) available at http://www.ncd.gov/newsroom/publications/2008/FosterCareSystem_Report.html (viewed Oct. 15, 2010).

33. Herrick & Ward, supra note 7 at 2-11.

34. McNaught, supra note 6 at 22.