Maricopa County Juvenile Court in Arizona. Photo courtesy of Law for Kids.
Alex* was 5 years old when he was removed from his home and entered Arizona’s foster care system. Alex was often left alone in his home, went days without a solid meal, and hadn’t yet started school. At the first court hearing, at the Maricopa County Superior Court, his mother admitted to using heroin and accepted the state’s mandatory offer of treatment services. Due to the severity of the neglect, the court determined that it was not safe for Alex to return home, and instead, he would live with a foster family.
The goal of the child welfare system is to reunify parents with their children whenever possible. To that effect, Alex’s mom retained many parental rights, including the right to control Alex’s education. Alex’s mother confirmed that she wanted educational rights of her son, and the court reflected this in its order.
Alex moved to his foster placement and started kindergarten. After a month, the school expressed concern about Alex in several key areas. The school thought it possible that Alex had a disability, and the school recommended that Alex be evaluated for special education. This could include services like speech and occupational therapies, specialized instruction in academics, and behavior support.
Per federal law, before any special education services can be put into place for a child, the school must evaluate the student. Per that same law, parental consent is required to begin the evaluation.
Because Alex’s mother retained educational rights, the school needed consent from her before they could begin. The school sent the evaluation paperwork to Alex’s mother’s last known address and called her cell number. Alex’s mother never answered the phone and never replied to the mail. She had stopped attending visits with Alex, and his case manager had no information as to her whereabouts.
No one knew where Alex’s mother was or how to find her. While this is not unusual for people struggling with drug addiction, without her signature, the school was unable to put into place any of the myriad special education services it had at its disposal to help Alex access the curriculum.
Without special education, Alex was unable to keep up and fell farther behind his peers. It was clear that Alex had special needs, but he was unable to benefit from his public education simply because he was in foster care.
Because it takes, on average, two years for an Arizona court to determine whether or a not a parents’ rights to his or child should be terminated, this is not an isolated scenario. Whether it is a foster child with autism forced to remain in a general education setting, a child with a speech impediment unable to see the school’s speech therapist, or a child in the system with Down syndrome who can’t be offered specialized academic instruction, it is unquestionably unjust and just one example of how our nation’s foster children are not afforded access to the opportunities guaranteed to other children.
In Arizona, the only recourse for a student like Alex was a modification to the court order removing the educational rights from the biological parent. While technically possible, it rarely happened. The required coordination between school personnel, a child’s case manager, a guardian ad litem, and the court made this impractical, at best.
Arizona’s foster children needed a common-sense solution. That solution was to model a handful of other states and allow the child’s foster parents to provide educational consent if the biological parent cannot be located or does not make any attempt to participate in the education process. House Bill 2378, introduced by Generation Justice and signed into law by Governor Ducey this past April, does just this.
Children in foster care have already been victimized once. Thoughtful legal reform makes sure they aren’t victimized again by the very system meant to protect them.
* Alex’s real identity is being kept anonymous to protect the privacy of this child.
Rebecca Masterson is vice president and chief counsel for Generation Justice.