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 person holding education decision-making authority for a child or youth in DFPS conservatorship. 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 must include 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 which 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,^[209] to be filled out by the caseworker and provided to the school by the child's caregiver.

2. Court Hearings

During each permanency hearing before and after final order, the Court must review the permanency progress report to 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 if there have been major changes in the child's school performance or whether there have been serious disciplinary issues. Tex. Fam. Code § 263.306(a-1)(5)(G); § 263.5031(a)(4)(J).

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 CPS Policy 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 Education 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, including information about the restraint including the circumstances and details surrounding its use required by Tex. Educ. Code § 37.0021;

•   Use of corporal punishment as provided by Tex. Educ. Code § 37.0011; and

•   Appointment of a surrogate parent for the child under Tex. Educ. Code § 29.0151. Tex. Educ. Code § 25.007(b)(10).

DFPS must provide notice of significant events, including a major change in school performance (such as any failing grade in a reporting period that jeopardizes the student's advancement to the next grade level) 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. This notice must be provided 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 (f); 40 Tex. Admin. Code § 700.1355(a)(4)(A).

4. Education-Related Requirements for AALs and GALs

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

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 DFPS 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), and Tex. Educ. Code § 29.015(b).

A school district may not require a foster parent to retake a training program to continue to serve as a child's parent or to serve as the surrogate parent for another child if the foster parent has completed 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. Tex. Educ. Code § 29.015(b-1).

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 parent 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 determining the need for a surrogate parent. 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).

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, including employees of SSCCs. 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); 19 Tex. Admin. Code § 89.1047.

In appointing a person to serve as the surrogate parent for a child, the court must 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) and Tex. Fam. Code § 263.0025(f).

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 14 years of age;

•   The determination of least restrictive environment;

•   The implementation of an IEP;

•   The procedural rights and safeguards available under IDEA; and

•   Where to obtain assistance in understanding the provisions of federal and state laws, rules, and regulations relating to students with disabilities; and

•   The duties and responsibilities of surrogate parents as required under Tex. Educ. Code § 29.0151(d). 19 Tex. Admin. Code § 89.1047(c)(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 not properly performing the duties listed under Tex. Educ. Code § 29.0151(d), the district shall consult with DFPS regarding whether another person should be appointed 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), if DFPS agrees with the district that the appointed surrogate parent is unable or unwilling to properly perform the duties required under Tex. Educ. Code § 29.0151:

•   DFPS must promptly notify the court of the agreement; and

•   As soon as practicable after receiving notice under Tex. Educ. Code § 29.0151(g)(1), the court must:

• review the appointment; and
• enter any orders necessary to ensure the child has a surrogate parent who performs the required duties. Tex. Educ. Code § 29.0151(g).

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