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Foster Children and the IDEA; the Fox Guarding the Henhouse

Rebekah Gleason Hope, Florida Coastal School of Law

Abstract

The Individuals with Disabilities Education Act (IDEA) creates a complex bundle of rights that protects parents of children with disabilities in an effort to provide each child that is eligible with a free appropriate public education (FAPE). Children in the dependency system, commonly referred to as foster children, also require a free appropriate public education when they have disabilities that affect their learning, but they have no one to advocate for them or assist them in securing an appropriate educational program. They need a surrogate to take the place of the parents who are unable to fill that role. The IDEA has always provided a mechanism for an educational surrogate parent to be appointed by the child’s school system, but the recent re-authorization of the Act goes further in protecting the rights of children with disabilities when it allowed dependency court judges the power to appoint them as well. The purpose of my article is to examine the challenges that face foster children in education generally, and more specifically the challenges faced by children in foster care who have disabilities that affect them educationally. It will explain why it is not in the school systems’ interest to appoint surrogate parents, and therefore, most school systems either have no program to do so. It further discusses a practical approach to setting up a surrogate parent program. This article will first discuss the background of and the need for special education services. Second, it will discuss the unique needs of foster children and how those needs impact their education. Third, it will discuss how those needs impact the children who require special education services, including whether children in the foster care system are improperly included in special education. Fourth, the paper will discuss the changes to the IDEA 2004 that affect children in foster care, including the definition of “parent” as well as changes to the appointment of surrogate parents process. Finally, fifth, the paper will explore whether this new provision has already helped, or may help the foster child population in the future.

Suggested Citation

Rebekah Gleason Hope. 2008. "Foster Children and the IDEA; the Fox Guarding the Henhouse" ExpressO
Available at: http://works.bepress.com/rebekah_hope/1

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