C. Roles and Responsibilities Related to Education

1. Designation of Education Decision-Maker

Tex. Fam. Code § 263.004 requires DFPS to provide notice to the court and others of the entity or person holding education decision-making authority for a child or youth in foster care. Generally, when appointed temporary or permanent managing conservator, DFPS is given the rights and duties of a non-parent managing conservator pursuant to Tex. Fam. Code § 153.371, which includes the right to make decisions regarding the child’s education. Tex. Fam. Code § 153.371(10).

Unless the court order limits the rights and duties of DFPS under Tex. Fam. Code § 153.371(10) to make decisions regarding the child’s education, DFPS must file with the court the name and contact information for each person who has been:

•   Designated by DFPS to make educational decisions on behalf of the child; and

•   Assigned to serve as the child’s surrogate parent in accordance with 20 U.S.C. § 1415(b) and Tex. Educ. Code § 29.001(10), for purposes of decision-making regarding special education services, if applicable. Tex. Fam. Code § 263.004(a).

Not later than the fifth day after the date of an Adversary Hearing held under Tex. Fam. Code § 262.201 is concluded, DFPS must file the information required by Tex. Fam. Code § 263.004(a) with the court and provide a copy to the school the child attends. Tex. Fam. Code § 263.004(b).

If a person other than a person identified under Tex. Fam. Code § 263.004(a) is designated to make educational decisions or assigned to serve as a surrogate parent, DFPS shall file the updated information in a permanency progress report filed under Tex. Fam. Code§ 263.303 or Tex. Fam. Code § 263.502. The updated information must be provided to the school the child attends not later than the fifth day after the date of the designation or assignment. Tex. Fam. Code § 263.004(c).

In order to comply with this mandate, DFPS created Form 2085-E Designation of Education Decision-Maker,[25] to be filled out by the caseworker and provided to the school by the child’s caregiver.

Special Issue: Every student in foster care will have an education decision-maker. Only certain students in foster care who are eligible to receive special education services will have a surrogate parent appointed, as outlined below.

2. Court Hearings

During the Permanency Hearing Before Final Order, the Court must review the permanency progress report determine whether an education decision-maker for the child has been identified, the child’s education needs and goals have been identified and addressed, and there have been major changes in the child’s school performance or there have been serious disciplinary issues. Tex. Fam. Code § 263.306(a-1)(4)(F).

At the Permanency Hearing After Final Order, the court must determine whether an education decision-maker for the child has been identified, the child’s education needs and goals have been identified and addressed, and there are major changes in the child’s school performance or there have been serious disciplinary events. Tex. Fam. Code § 263.5031(3)(I).

Special Issue: In light of the DFPS duty to notify the court of the name and contact information of the education decision-maker within five days of the designation, if DFPS does not provide Form 2085-E in the permanency progress report, the court might inquire on the record during the Permanency Hearings Before or After Final Order about the identity of the education decision-maker for the child.

Upon request of a person providing substitute care for a child who is in the managing conservatorship of DFPS, DFPS shall allow the person to provide the child with an education in the home setting unless:

•   The right of DFPS to allow the education of the child in a home setting has been specifically limited by court order;

•   A court at a hearing conducted under Tex. Fam. Code Chapter 263 finds, on good cause shown through evidence presented by DFPS in accordance with the applicable provisions in the DFPS CPS Handbook, that education in the home setting is not in the best interest of the child; or

•   DFPS determines that federal law requires another school setting. Tex. Fam. Code § 263.0045.

3. Notice of Significant Events

School districts, campuses, and open-enrollment charter schools must provide notice to the child’s educational decision-maker and caseworker regarding events that may significantly impact the education of a child, including:

•   Requests or referrals for an evaluation under Section 504, Rehabilitation Act of 1973, 29 U.S.C. § 794, or special education under Tex. Educ. Code § 29.003;

•   Admission, review, and dismissal (ARD) committee meetings;

•   Manifestation determination reviews required by Tex. Educ. Code § 37.004(b);

•   Any disciplinary actions under Tex. Educ. Code Chapter 37 for which parental notice is required;

•   Citations issued for Class C misdemeanor offenses on school property or at school-sponsored activities;

•   Reports of restraint and seclusion required by Tex. Educ. Code § 37.0021; and

•   Use of corporal punishment as provided by Tex. Educ. Code § 37.0011. Tex. Educ. Code § 25.007(b)(10)(A)-(G).

Special Issue: State law requires schools to notify caseworkers of the enumerated major events, including the issuance of a Class C misdemeanor citation at school. Please note, however, that since 2013, ticketing is no longer permitted for school-related misbehavior constituting a Class C misdemeanor.

DFPS must provide notice of significant events, including a major change in school performance or a serious disciplinary event at school not later than the 10th day after the date DFPS becomes aware of a significant event affecting a child in the conservatorship of DFPS to:

•   The child’s parent;

•   An attorney ad litem appointed under Tex. Fam. Code Chapter 107;

•   A guardian ad litem appointed under Tex. Fam. Code Chapter 107;

•   A volunteer advocate appointed for the child under Tex. Fam. Code Chapter 107;

•   The licensed administrator of the child-placing agency responsible for placing the child or the licensed administrator’s designee;

•   A foster parent, prospective adoptive parent, relative of the child providing care to the child, or director of the group home or general residential operation where the child is residing; and

•   Any other person determined by the court to have an interest in the child’s welfare. Tex. Fam. Code § 264.018(a)(5)(D) and Tex. Fam. Code § 264.018(f).

4. Education-Related Requirements for AALs and GALs

An attorney ad litem appointed to represent a child in the managing conservatorship of DFPS must, before each scheduled hearing under Tex. Fam. Code Chapter 263, determine whether the child’s educational needs and goals have been identified and addressed. Tex. Fam. Code § 107.004(d-2).

A guardian ad litem appointed to represent a child in the managing conservatorship of the DFPS shall, before each scheduled hearing under Tex. Fam. Code Chapter 263, determine whether the child’s educational needs and goals have been identified and addressed. Tex. Fam. Code § 107.002(i). Guardians ad litem are now required by law to interview the child’s educators. Tex. Fam. Code § 107.002(b).

Special Issue: Consider whether to continue the appointment of the attorney and guardian ad litem, especially CASA, on the case to address education issues until the youth permanently leaves care. If the attorney ad litem is dismissed before the youth leaves care, consider whether to identify an education advocate by court order.

5. Decisions Related to Special Education

A foster parent for a child may act as a parent for the child, as authorized under 20 U.S.C. § 1415(b), if:

•   The rights and duties of the department to make decisions regarding the child’s education under Tex. Fam. Code § 153.371 have not been limited by court order; and

•   The foster parent agrees to participate in making special education decisions on the child’s behalf and complete a training program that complies with TEA minimum standards before the next ARD meeting but no later than 90 days after assuming the role. Tex. Fam. Code § 263.0025(a-1), Tex. Educ. Code § 29.015(a)(3), and Tex. Educ. Code § 29.015(b).

If the foster parent completes a training provided by DFPS, a school district, an Education Service Center, or any other entity that receives federal funds to provide special education training to parents, the foster parent need not retake the training. Tex. Educ. Code § 29.015(b-1).

Special Issue: In the 85th Legislative Session, the requirement that a child live in a foster home for 60 days before the foster parent could act as parent, for the purposes of making special education-related decisions, was removed. As a default, the foster parent will now serve as parent from Day 1 and there will be no surrogate parent appointed.

Under the Individuals with Disabilities Education Act (IDEA), if a “parent” cannot be identified or located the school district must assign an individual to act as a surrogate for the parents for a child with a disability in foster care who is eligible to receive special education services. 20 U.S.C. § 1415(b)(2)(A). The school district has 30 days to appoint a surrogate parent upon realizing the need. 20 U.S.C. § 1415(b)(2)(B).

To ensure the educational rights of a child are protected in the special education process, the court may appoint a surrogate parent for the child if:

•   The child’s school district is unable to identify or locate a parent for the child; or

•   The foster parent of the child is unwilling or unable to serve as a parent for the purposes of Tex. Fam. Code Chapter 263, Subchapter A. Tex. Fam. Code § 263.0025(b).

Special Issue: School districts have a mandatory duty to appoint a surrogate parent if a parent cannot be identified or located. Courts have permissive authority to appoint a surrogate parent.

Except as provided by Tex. Fam. Code § 263.0025(d), the court may appoint a person to serve as a child ’s surrogate parent if the person is willing to serve in that capacity and meets the requirements of 20 U.S.C. § 1415(b). Tex. Fam. Code § 263.0025(c). Employees of DFPS, TEA, a school or school district, or any other agency involved in the education or care of the child cannot serve as surrogate parents. Tex. Fam. Code § 263.0025(d).

The court may appoint a child’s guardian ad litem or court-certified volunteer advocate, as provided by Tex. Fam. Code § 107.031(c), as the child’s surrogate parent. Tex. Fam. Code § 263.0025(e). To act as a surrogate parent for the child, the volunteer advocate must complete a training program for surrogate parents that complies with minimum standards established by TEA rule within the time specified by Tex. Educ. Code § 29.015(b). Tex. Fam. Code §107.031(c)(4).

In appointing a person to serve as the surrogate parent for a child, the court may consider the person’s ability to meet the following qualifications:

•   Be willing to serve in that capacity;

•   Exercise independent judgment in pursuing the child ’s interests;

•   Ensure that the child ’s due process rights under applicable state and federal laws are not violated;

•   Complete a training program that complies with minimum standards established by TEA rule within the time specified in Tex. Educ. Code § 29.015(b);

•   Visit the child and the school where the child is enrolled;

•   Review the child ’s educational records;

•   Consult with any person involved in the child’s education, including the child’s teachers, caseworkers, court-appointed volunteers, guardian ad litem, attorney ad litem, foster parent and caregiver; and

•   Attend meetings of the child’s ARD committee. Tex. Educ. Code § 29.0151(d)(2)-(8) and Tex. Fam. Code § 263.0025(f).

Special Issue: Consider appointment of a surrogate parent for youth in Residential Treatment Centers who are receiving special education services.

Pursuant to Tex. Educ. Code § 29.001(10)(A), an individual assigned to act as a surrogate parent must complete a training program in which the individual is provided with an explanation of the provisions of federal and state laws, rules, and regulations relating to:

•   The identification of a student with a disability;

•   The collection of evaluation and re-evaluation data relating to a student with a disability;

•   The ARD committee process;

•   The development of an individualized education program (IEP), including the consideration of transition services for a student who is at least 16 years of age;

•   The determination of least restrictive environment;

•   The implementation of an IEP;

•   The procedural rights and safeguards available under 34 C.F.R. § 300.148, 34 C.F.R. § 300.151-300.153, 34 C.F.R. § 300.229, 34 C.F.R. § 300.300, 34 C.F.R. § 300.500-300.520, 34 C.F.R. § 300.530-300.537, and 34 C.F.R. § 300.610-300.627, relating to the issues described in 34 C.F.R. § 300.504(c); and

•   The sources that the surrogate parent may contact to obtain assistance in understanding the provisions of federal and state laws, rules, and regulations relating to students with disabilities. 19 Tex. Admin. Code § 89.1047(a)(1).

If a court appoints a surrogate parent for a child with a disability under Tex. Fam. Code § 263.0025 and the school district determines that the surrogate parent is failing to perform or is not properly performing the duties listed under Tex. Educ. Code § 29.0151(d), the district shall consult with DFPS and appoint another person to serve as the surrogate parent for the child. Tex. Educ. Code § 29.0151(f).

On receiving notice from a school district under Tex. Educ. Code § 29.0151(f), DFPS must promptly notify the court of the failure of the appointed surrogate parent to properly perform the duties required under Tex. Educ. Code § 29.0151. Tex. Educ. Code § 29.0151(g).

For more information on special education, see Section F of this chapter, Special Education and Section 504.