VI. Transition: Foster Care and Juvenile Justice

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Dated March 15, 2012

Transitions for a youth on the road to adulthood, whether from foster care, special education, or juvenile justice, present special challenges. IDEA requires specific support for transitions. Transitions provided from foster care are also statutorily mandated. Transitions to college, or from incarceration, can present special challenges. Any transitions planned for a youth should coordinate services so that a full wrap-around plan is in place.

A. Transition Overview

1. Transition to Adulthood

The National Collaborative on Workforce and Disability for Youth has made recommendations for transition to adulthood.

All youth may need:

• mental or physical health services;
• transportation;
• tutoring;
• financial planning and management;
• structured arrangements in postsecondary institutions and adult service agencies.

Youth with disabilities may need in addition:

• appropriate assistive technologies;
• community orientation and mobility training;
• exposure to post-program supports such as independent living services;
• personal assistance services (such as interpreters); and
• benefits planning counseling.

Foster youth may need in addition:

• opportunity to obtain a driver’s license, library card, voter registration, birth certificate, and medical records;
• adults to help navigate systems;
• transitional and long term housing;
• access to financial aid for college;
• health care information; and
• foster care caseworkers helping youth make connections in work and community.¹

2. Special Education Transition in Colorado

Colorado’s State Performance Plan for fiscal years 2005-10 reports that 2.1 percent “of youth with disabilities aged 16 and above were estimated to have an IEP that includes coordinated, measurable, annual IEP goals and transition services that will reasonably enable the student to meet the post-secondary goals.”² Deficiencies included the following: transition documentation was lacking in IEPs (possibly omitting transition preparation that had actually occurred); Post School Goals were often lacking or not coordinated, and linkage with Adult Service agencies was lacking.³

The Colorado Department of Education has provided a number of educational and training opportunities to improve transition planning.⁴ Also, the Colorado Department of Education Exceptional Student Leadership Unit has a variety of resources for transition planning (see Resources). Adequate transition planning should be the concern of all involved with a child in the child welfare or juvenile justice system.

3. Transition and Section 504

Transition services under Section 504 means a coordinated set of activities that may include a number of important services, such as vocational training or supported employment.⁵ However, the structure of these services is not defined as it is under IDEA.

4. Transfer of Educational Rights

Under FERPA and IDEA, students over eighteen have control of their educational records and educational decisions. Under FERPA, consent to release of records must come from the student, though a notice of disclosure is sent to both student and parent.⁶ Under IDEA, the parents' rights to make educational decisions transfer to the student when he or she reaches the age of majority. In Colorado the age of majority for educational purposes is 21, unless the student is determined to be incompetent.⁷

B. Transition Services Under IDEA

1. Statutory Requirements Under IDEA

Transition services “means a coordinated set of activities for a child with a disability that”:

(A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(B) is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and

(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.⁸

These services are to begin no later than when the child is fifteen, or the end of the ninth grade.⁹ The IEP must include “[a]ppropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills. . . .”¹⁰ In Colorado, the IEP includes the transition services needed to assist the child in reaching the above goals.¹¹ The child must also be informed at least a year before the age of majority of transfer of educational rights.¹²

A child with a disability who has graduated from high school with a regular high school diploma, as opposed to graduating with a modified diploma, is no longer eligible for a free appropriate public education (FAPE) under IDEA.¹³

2. Implementing Educational Transition Under IDEA

Starting around age fourteen, an IEP team, consisting of the child, parents or educational surrogate parent (ESP), school personnel, the child’s guardian ad litem, if applicable, and representatives from agencies, such as vocational rehabilitation or child welfare, convenes to discuss the child’s goals after high school and what services are necessary to support this transition. Each year, the IEP team should consider what transition services are needed for that year so the student will be fully prepared by the time he or she leaves high school.¹⁴ These services may include additional classes, independent living skills, employment skills, and connections to other agencies.¹⁵

Students with disabilities have challenges in higher education. They may have difficulty taking on a heavy workload of work and classes.¹⁶ Some institutions provide good support for students with disabilities, while others do not.

For entering the workforce, youth with disabilities need to:

• “Understand the relationships between benefits planning and career choices;
• Learn to communicate their disability-related work support and accommodation needs; and,
• Learn to find, formally request, and secure appropriate supports and reasonable accommodations in education, training and employment settings.”¹⁷

Note that while IDEA does not extend past the age of twenty-one, Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act still provide protections.

3. Other Agencies and Transition Planning for Disabilities

Other agencies may be involved in transition planning and may attend the IEP transition planning meetings:

• Division of Vocational Rehabilitation (DVR) provides services to people with disabilities to help reach employment goals. Qualifications for DVR are less stringent than under IDEA.
• Division for Developmental Disabilities and the Community Centered Board System is responsible for services for people who have a developmental disability, typically those with an IQ score of 70 or less, and adaptive behavior needs. Add the child’s name to the waiting list at the age of fourteen, because the waiting list is long.
• Division of Mental Health and Community Mental Health Centers services persons with mental health needs who are Medicaid eligible or have no or limited health insurance.¹⁸
• The School to Work Alliance Program (SWAP) was developed through collaborative agreements among the Colorado Department of Education, the Division of Vocational Rehabilitation, and community organizations. It provides many job development, job placement, and job training services.¹⁹

Other agencies also provide help in general transition planning that could be incorporated into IEP transition planning. The Carl D. Perkins Vocational and Applied Technology Education Act²⁰ provides funds to states and school systems for vocational education programs. Under the Perkins Act, special populations, such as those with disabilities and other disadvantages, have access to vocational education programs, supplementary services, and career counseling.²¹

C. Transition from Foster Care

In addition to educational transition under IDEA, foster children must transition out of foster care. DHS is responsible for drafting a plan, called a Family Service Plan, for transition from foster care to independent living and emancipation. It must be based on the individual needs of the child and be in the best interests of the child. The Family Service Plan must document services that are to be provided for the areas of need. The services are described “in terms of specific, measurable, agreed upon, realistic, time-limited objectives and action steps to be accomplished by the parents, child, service providers and county staff.”²²

For children age sixteen and older in out-of-home placement, the transition plan must be completed within sixty calendar days of the child’s sixteenth birthday.²³ The plan must assist the youth in preparation for self-sufficiency and independent living.²⁴

1. John H. Chafee Foster Care Independence Act of 1999 (Chafee Act)

The Act, which is intended to help young adults transition out of foster care to independent living, sets forth five types of programs and provides federal funds for states to implement the programs.²⁵

• Transition help for children likely to remain in foster care until age eighteen in the areas of daily living and health skills;
• Transition help for children likely to remain in foster care until age eighteen in training and education to obtain employment;
• Transition help for children likely to remain in foster care until age eighteen in preparation for post-secondary education;
• Transition help in the form of personal and emotional support to children aging out of foster care;
• Transition help to former foster children between eighteen and twenty-one years of age in finance, housing, counseling, employment, and education.²⁶

The Chafee Foster Care Independence Program (CFCIP) enables states to provide independent living programs and services to foster youth “aging out” of the foster care system, and the services extend to age twenty-one.²⁷ The following youth are eligible for assistance:

• youth in out-of-home care, under the age of sixteen, who have a permanency goal;
• youth in out-of-home care, ages sixteen to twenty-one, who have a permanency goal;
• youth ages sixteen to twenty-one who have been dually adjudicated both delinquent and abused or neglected, and who have been, at some point, in the care of the Department of Human Services; and
• young adults ages eighteen to twenty-one who were in out-of-home care on their eighteenth birthday.²⁸

Chafee also provides an Educational and Training Voucher Program for Youth Aging Out of Foster Care, which provides education and training funds for postsecondary education.²⁹ Some services offered under CFCIP are:

• tutoring;
• peer support;
• career counseling;
• housing assistance;
• independent life skills training; and
• tuition vouchers for post secondary education.³⁰

If youth are in a Residential Treatment Center, the RTC is responsible for providing independent living skills.³¹

2. Medicaid Eligibility

Children receiving foster care maintenance or adoption assistance payments are eligible for medical assistance under Medicaid from age eighteen until they turn twenty-one.³²

3. Special Issues With Foster Care Transition

The Chafee Act doubles the amount of federal funds provided to the states for services for teens leaving the child welfare system.³³

Potential problems for IEP transition for youth in foster care are: 1) lack of coordination with CFCIP transition planning; 2) lack of postsecondary education goals; 3) lack of parent participation without provision of an educational surrogate parent (ESP); and 4) less advocate involvement.³⁴

Both the IEP and CFCIP provide, or should provide, transition services, but the two systems often operate independently, without coordination.³⁵ There may be almost no alignment of IDEA’s IEP transition plan with the transition plan required by the child welfare system, even though coordination is critical.³⁶

Fewer foster youth go to college compared to youth who are not in the child welfare system. Special problems faced by foster youth may be that they are not prepared for the self-sufficiency and independent living required in college, or even adult life in general.³⁷ This is true for non-foster youth as well, but they tend to have better support systems from parents.

Institutionalized foster youth are especially vulnerable to being inadequately prepared because the transition of leaving the group home on their eighteenth birthday can be extremely abrupt.³⁸

D. College Transition

For students with disabilities and those aging out of foster care, or both, the transition to college can be difficult.

Students with disabilities may need special education support in college. Postsecondary institutions that receive any federal grant money (most of them) are obligated to provide accommodations under the Americans With Disabilities Act and Section 504. However, students must file paperwork to request accommodations, and document their disabilities.³⁹ When a student graduates with a regular diploma, or ages out of IDEA, the school must provide the student with a summary of the child’s academic achievement and functional performance, which must include recommendations on how to assist the student to meet postsecondary goals.⁴⁰ If the last IEP is well written, and includes this summary, that should be adequate to establish disability documentation. Students with disabilities should also request needed accommodations.

Colleges vary greatly in their level of support for students with disabilities. Ideally, a disability counselor should be available to support the student, to help solve problems, and to advocate for the student with professors and other personnel. The counselor initially should meet with the student at least once a week, and perhaps less as the student settles in. Other services such as tutoring should be available as needed. Accommodations for the student should be readily available. If the student and parents discuss the disability issue with different schools, they will be able to discern which schools support disability issues with enthusiasm and which ones pay lip service to the concept. One of the author’s sons attends a school with an enthusiastic, pro-active disability counselor, who meets with him as often as required, and has advocated for him. He chose not to attend a school that asked to know what his disabilities were before they accepted him!

Special problems faced by foster youth may be that they are not prepared for the self-sufficiency and independent living required in college.⁴¹ This is true for non-foster youth as well, of course, but they tend to have better support systems from parents. Institutionalized foster youth are especially vulnerable because the transition of leaving the group home on their eighteenth birthday can be extremely abrupt.⁴²

Programs focusing on success for foster youth in college are growing but not widely available.⁴³ Considerations for foster youth transitioning to college include:

• support for college planning and filling out paperwork, which can be overwhelming;
• where they will live, because they need year-round housing;
• help applying for financial aid, and access to funds available for foster youth (such as through Chafee Education Training Vouchers);
• support system in college;
• medical coverage through Medicaid or through the school;
• transportation issues (or a college that does not require private transportation); and
• technology access (such as a laptop through Chafee ETV).

Needs of students with disabilities and foster youth are similar in many ways, and must be addressed for the students to succeed in higher education.

E. Transition from Incarceration

To prevent relapse, juveniles with disabilities coming out of incarceration need ongoing care. The court can ask whether those involved with the juvenile, such as family, employers, and teachers, understand the juvenile’s disability-related needs and can provide support to help the juvenile transition back into the community.

1. Best Practices for Transition

The following are some best practices for transition.

• Help a juvenile in a community setting practice new behaviors in increasingly difficult situations, with staff support at first, then gradually with less monitoring.
• Prepare a transition plan with possible hazards for relapse and ways to overcome these; this could include specifically planning what the juvenile will do every day for the first two weeks after release.
• Continue with family and service providers.
• Train family and others how to provide reinforcement for positive behavior.
• Schedule booster sessions with care providers.⁴⁴
• Gather and transfer records of credits earned in the correctional setting.
• In developing a new IEP for the school setting, discuss and clarify guidelines about rules and school expectations, including modifications and coping skills.⁴⁵
• If there are mental health or emotional disturbance issues, be sure juveniles reconnect with the education system and are provided with proper intervention and support.⁴⁶

2. Transition Under NCLB

The state agency must reserve a certain portion of funds granted by NCLB for transition services. These services facilitate transition of institutionalized children and youth, including incarcerated youths, to local schools or to postsecondary education or vocational and technical training programs.⁴⁷ The agency provides essential support services, such as counseling, job and educational placement services, and assistance obtaining financial aid.⁴⁸

Correctional facilities receiving funds under NCLB are required, where feasible, to coordinate educational programs with a student’s home school, particularly with respect to an IEP, so it should notify the local school if special education services are needed.⁴⁹ Transition assistance to help a juvenile stay in school includes “coordination of services for the family, counseling, assistance in accessing drug and alcohol abuse prevention programs, tutoring, and family counseling.”50

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1. National Council on Disability, Youth with Disabilities in the Foster Care System:Barriers to Success and Proposed Policy Solutions, at 37 (2008) available at http://www.ncd.gov/newsroom/publications/2008/FosterCareSystem_Report.html (viewed Oct. 15, 2010); Guidepost documents at http://www.ncwd-youth.info/resources_&_Publications/guideposts/ (viewed Oct. 15, 2010).

2. Colorado Department of Education Exceptional Student Services Unit, Colorado FFY 2005-2010 State Performance Plan for Special Education, at 84 (2005, updated February 2008) available at www.cde.state.co.us/cdesped/download/pdf/sipCO_SPP_2005_Final.pdf (viewed February 6, 2009).

3. Id. at 89.

4. Id. at 91-93; see Exceptional Student Services Unit homepage athttp://www.cde.state.co.us/cdesped/ for contact information.

5. 29 U.S.C. § 705(37) (2009).

6. Kathleen McNaught, Learning Curves:Education Advocacy for Children in Foster Care31 (ABA Center on Children and the Law 2004).

7. Rule 6.02(9).

8. 20 U.S.C. § 1401(34) (2008).

9. 20 U.S.C. § 1414(d)(1)(A)(i)(VIII) (2005).This is an example of a state making a more stringent administrative rule.In lieu of 34 C.F.R. § 300.320(b), State Bd. of Educ. Rule 4.03(6)(d)(i), 1 Code Colo. Regs. 301-8 (2007) requires the transition plan begin no later than the age of 15, rather than 16.

10. 34 C.F.R. § 300.320(b).

11. Rule 4.03(6)(d)(iii).

12. Rule 4.03(6)(e).

13. 34 C.F.R. § 300.102(a)(3).

14. Joseph B. Tulman and Joyce A. McGee, eds., Special Education Advocacy for Children in the Juvenile Delinquency System 9-8 (University of the District of Columbia School of Law Juvenile Law Clinic, 1998).

15. National Council on Disability, supra note 1 at 35.

16. Id. at 31.

17. National Collaborative on Workforce and Disability, Guideposts for Success 4 available at http://www.ncwd-youth.info/guideposts/career (viewed Oct. 15, 2010).

18. Angela J. Herrick & Helen D. Ward, Advocating for the Educational Needs of Children in Out-of-Home Care 7-14 Colorado Department of Human Services.

19. School to Work Alliance Program available at http://www.cdhs.state.co.us/dvr/par_SWAP.htm (viewed Oct. 15, 2010).

20. 20 U.S.C. § 2301 et seq. (2006).

21. Tulman and McGee, supra note 14 at 9-10.

22. Child Welfare Services Reg. No. 7.301.23(A), 12 Code Colo. Regs. 2509-4.

23. Child Welfare Services Reg. No. 7.301.21(C).

24. Child Welfare Services Reg. No. 7.301.24(K).

25. National Children’s Law Network, In School, the Right School, Finish School 27 (Holland & Hart and Rocky Mountain Children’s Law Center 2007).

26. 42 U.S.C. § 677(a)(5) (2002).

27. 42 U.S.C. § 677.

28. Herrick & Ward, supra note 18 at 7-6.

29. National Council on Disability,supra note 1 at 29.

30. Herrick & Ward, supra note 18 at 7-5.

31. Id. at 7-5 to 7-6.

32.C.R.S. § 25.5-5-101 and 201(1).

33. McNaught, supra note 6 at 30.

34. National Council on Disability, supra note 1 at 35.

35. Id. at 6

36. Id. at 30.

37. Id. at 31.

38. Id. at 38.

39. Cheryl Sahlen and Jean Lehmann, Requesting Accommodations in Higher Education, Teaching Exceptional Children, Vol. 38, No. 3, pp. 28-34 (2006).

40. 20 U.S.C. § 1414(c)(5)(B)(ii).

41. National Council on Disability, Youth with Disabilities in the Foster Care System:Barriers to Success and Proposed Policy Solutions, at 31 (2008) available at http://www.ncd.gov/newsroom/publications/2008/FosterCareSystem_Report.html (viewed Oct. 30, 2010).

42. National Council on Disability, Youth with Disabilities in the Foster Care System:Barriers to Success and Proposed Policy Solutions, at 38 (2008) available at http://www.ncd.gov/newsroom/publications/2008/FosterCareSystem_Report.html (viewed Oct. 30, 2010).

43. John Emerson, From Foster Care to College:Supporting Independent Students, NASPA Leadership Exchange, Vol. 4, Issue 4 (Winter 2007).

44. Center for Effective Collaboration and Practice & EDJJ, The National Center on Education, Disability, and Juvenile Justice, Best Practices for Serving Court Involved Youth with Learning, Attention and Behavior Disabilities 21-22 (June 2002) available at http://cecp.air.org/juvenilejustice/juvenile_justice.asp (viewed Oct. 30, 2010).

45. Unique Challenges, Hopeful Responses:A Handbook for Professionals Working With Youth With Disabilities in the Juvenile Justice System 49 (Pacer Center, Minneapolis, MN1997).

46. Testimony of the National Council on Disability, Juvenile Detention Centers:Are They Warehousing Children with Mental Illness? 9 (July 7, 2004) available at http://www.ncd.gov/newsroom/testimony/2004/juvenile_07-07-04.htm (viewed Oct. 30, 2010).

47. 20 U.S.C. § 6438(a)(1) & (2) (2002).

48. 20 U.S.C. §6438(2)(C)(i) through (u).

49. 20 U.S.C. § 6455(1) and (2) (2002).

50. 20 U.S.C. § 6455(3).