2013 California Rules of Court
Rule 5.650. Appointment of educational representative
(a) Parent's or guardian's educational rights limited (§§ 319, 361, 366, 366.27, 726; 20 U.S.C. § 1415; 34 C.F.R. §§ 300.519, 300.300)
The court may limit a parent's or guardian's right to make educational decisions for a child who is declared a dependent or ward of the court under section 300, 601, or 602, but the limitations may not exceed those necessary to protect the child. Before disposition, the court may temporarily limit a parent's or guardian's right to make educational decisions under section 319(g). The court may limit a parent's or guardian's educational rights regardless of whether the child is, or may be eligible for, special education and related services.
(1)
If the court temporarily limits the parent's or guardian's right to make educational decisions under section 319(g), the court must reconsider the need, if any, to limit educational rights at the disposition hearing.
(2)The child's initial evaluation for special education services need not be postponed to await parental or guardian consent or appointment of an educational representative if one or more of the following circumstances are met:
(A)The court has limited or temporarily limited the educational rights of the parent or guardian, and consent for an initial assessment has been given by an individual appointed by the court to represent the child;
(B)The local education agency cannot discover the whereabouts of the parent or guardian; or
(C)The parent's rights have been terminated or the guardianship has been set aside.
(3)If the court determines that the child is in need of any assessments, evaluations, or services, including special education, mental health, and other related services, the court must direct an appropriate person to take the necessary steps to request those assessments, evaluations, or services.
(Subd (a) amended effective January 1, 2008; previously amended effective January 1, 2004, and January 1, 2007.)
(b) Appointment of educational representative (§§ 319, 361, 366, 366.27, 726; 20 U.S.C. § 1415; 34 C.F.R. § 300.519)
The court must use Findings and Orders Limiting Right to Make Educational Decisions for the Child, Appointing Educational Representative, and Determining Child's Educational Needs (form JV-535) when it limits the rights of a parent or guardian to make educational decisions for the child. In its order, the court must document that one of the following actions in (1) or (2) has been taken, or, in the alternative, that a finding under (3) has been made:
(1)The court has appointed an educational representative for the child;
(2)The court has ordered a permanent plan for the child, and the court finds that the foster parent, relative caregiver, or nonrelative extended family member may exercise educational rights as provided in Education Code section 56055 and rule 5.502(13) and is not prohibited from exercising educational rights by section 361 or 726 or by 34 Code of Federal Regulations section 300.519 or 303.19; or
(3) The court cannot identify a responsible adult to serve as the child's educational representative; and
(A)The child is or may be eligible for special education and related services, and the court is referring the child to the responsible local educational agency for appointment of a surrogate parent under section 361 or 726, title 20 United States Code section 1415, and rules 5.502 and 5.650; or
(B)The child is not eligible for special education and related services, there is no foster parent to exercise the authority granted by section 56055 of the Education Code, and the court will, with the input of any interested person, make educational decisions for the child.
(Subd (b) amended effective January 1, 2008; adopted effective January 1, 2004; previously amended effective January 1, 2007.)
(c) Limits on appointment (§§ 361, 726; Ed. Code, § 56055; Gov. Code, § 7579.5(i)-(j); 34 C.F.R. §§ 300.519, 303.19)
(1)The court should consider appointing a responsible adult relative, nonrelative extended family member, foster parent, family friend, mentor, or CASA volunteer as the educational representative if one is available and willing to serve.
(2)The court may not appoint any individual as the educational representative if that person is excluded under, or would have a conflict of interest as defined by section 361(a) or 726(b); Education Code section 56055; Government Code section 7579.5(i)-(j); title 20 United States Code section 1415(b)(2); or 34 Code of Federal Regulations section 300.519 or 303.19.
(Subd (c) amended effective January 1, 2008; adopted effective January 1, 2004; previously amended effective January 1, 2007.)
(d) Referral to local educational agency to appoint a surrogate parent for a child who is or may be eligible for special education and related services (§§ 361, 726; Gov. Code, § 7579.5; 20 U.S.C. § 1415)
(1)If the court has limited a parent's or guardian's right to make educational decisions for a child but cannot identify an educational representative for the child and the child is or may be eligible for special education and related services or already has an individualized education program, the court must use form JV-535 to refer the child to the responsible local educational agency for prompt appointment of a surrogate parent under Government Code section 7579.5.
(2)If the court refers a child to the local educational agency for appointment of a surrogate parent, the court must order that Local Educational Agency Response to JV-535-Appointment of Surrogate Parent (form JV-536) be served by first-class mail on the local educational agency along with form JV-535, no later than seven calendar days after the date of the order.
(3)The court must direct the local education agency that when the local education agency receives form JV-535, requesting prompt appointment of a surrogate parent, the local education agency must make reasonable efforts to assign a surrogate parent within 30 calendar days after the court's referral.
(A)Whenever the local educational agency appoints a surrogate parent for a dependent or ward under Government Code section 7579.5(a)(1), it must notify the court on form JV-536 within seven calendar days of the appointment and must send copies of the notice to the social worker or probation officer identified on the form.
(B)If the local education agency does not appoint a surrogate parent within 30 days of receipt of the form, within the next seven calendar days it must notify the court on form JV-536 of the following:
(i)Its inability to appoint a surrogate parent; and
(ii)Its continuing reasonable efforts to assign a surrogate parent.
(4)Whenever the surrogate parent resigns or the local education agency terminates the appointment of a surrogate parent for a dependent or ward under Government Code section 7579.5(h) or replaces the surrogate parent for any other reason, it must notify the court and the child's attorney on form JV-536 within seven calendar days of the resignation, termination, or replacement. The child's attorney may request a hearing for appointment of a new educational representative by filing Request for Hearing Regarding Child's Education (form JV-539) and must provide notice of the hearing as provided in (g)(2). The court on its own motion may direct the clerk to set a hearing.
(Subd (d) amended effective January 1, 2008; adopted as subd (b); previously amended and relettered effective January 1, 2004; previously amended effective January 1, 2007.)
(e) Transfer of parent's or guardian's educational rights to educational representative
When an educational representative is appointed, the educational rights of the parent or guardian-including the right to notice of educational meetings and activities, participation in educational meetings and activities, and decisionmaking authority regarding the child's education, including the authority under title 20 United States Code sections 1232g and 1401(23), 34 Code of Federal Regulations section 300.30, and Education Code section 56028-are transferred to the educational representative.
(1)When returning a child to a parent or guardian, the court must consider the child's educational needs. The parent's or guardian's educational rights are reinstated when the court returns custody to the parent or guardian unless the court finds that the parent is not able to act in the child's best interest regarding education.
(2)If the court appoints a guardian for the child under rule 5.735 or 5.815, all of the parent's or guardian's educational rights transfer to the newly appointed guardian unless the court determines that the guardian is not able to act in the child's best interest regarding education.
(Subd (e) amended effective January 1, 2008; adopted effective January 1, 2004; previously amended effective January 1, 2007.)
(f) Authority and responsibilities of educational representative (§§ 319, 360, 361, 635, 706.5, 726; Ed. Code, § 56055; Gov. Code, § 7579.5; 34 C.F.R. § 300.519)
(1)The educational representative is responsible for representing the child in the identification, evaluation, and educational placement of the child and with the provision of the child's free, appropriate public education. This includes representing the child in all matters relating to the child's education including:
(A)The stability of the child's school placement;
(B)Placement in the least restrictive educational program appropriate to the child's individual needs;
(C)The child's access to academic resources, services, and extracurricular and enrichment activities;
(D)The child's access to educational supports necessary to meet state academic achievement standards;
(E)School disciplinary matters; and
(F)Other aspects of the provision of a free, appropriate public education.
(2)The educational representative has the following additional responsibilities:
(A)Meeting with the child at least once and as often as necessary to make educational decisions that are in the best interest of the child;
(B)Being culturally sensitive to the child;
(C)Complying with federal and state confidentiality laws including section 827 and Government Code section 7579.1(f);
(D)Participating in, and making decisions regarding, all matters affecting the child's educational needs in a manner consistent with the child's best interest; and
(E)Having knowledge and skills that ensure adequate representation of the child.
(3)The educational representative acts as the parent or guardian in all educational matters regarding the child and has a right to the following:
(A)To the rights afforded the parent or guardian under the Family Education Rights and Privacy Act, title 20 United States Code section 1232g;
(B)To the rights of a parent relating to school discipline issues, meetings, and proceedings;
(C)To represent a child with exceptional needs in matters relating to identification and assessment of those needs, instructional planning and development, educational placement, reviewing and revising the individualized education program, and other aspects of the provision of a free, appropriate public education;
(D)To attend the child's individualized education program and other educational meetings, to consult with persons involved in the child's education, and to sign any consents to education-related services and plans; and
(E)Notwithstanding any other provision of law, to consent to the child's individualized education program, nonemergency medical services, mental health treatment services, and occupational or physical therapy services provided under chapter 26.5 of title 1 of the Government Code.
(Subd (f) adopted effective January 1, 2008.)
(g) Educational representative's term of service (§§ 361, 726; Gov. Code § 7579.5)
(1)The educational representative must make educational decisions for the child until:
(A)The court restores the right of the parent or guardian to make educational decisions for the child;
(B)The child reaches 18 years of age, unless the child chooses not to make his or her own educational decisions or is deemed incompetent by the court;
(C)The court appoints another educational representative for the child under this rule;
(D)The court appoints a successor guardian or conservator; or
(E)The court finds that the foster parent, relative caregiver, or nonrelative extended family member may make educational decisions for the child under Education Code section 56055(a) because:
(i)em] The child is placed in a planned permanent living arrangement under section 366.21(g)(3), 366.22, 366.26, 727.3(b)(5), or 727.3(b)(6);
(ii)The court has limited the parent's or guardian's educational rights; and
(iii)The foster parent, relative caregiver, or nonrelative extended family member is not otherwise excluded from making education decisions by the court, by section 361 or 726, or by 34 Code of Federal Regulations section 300.519 or 303.19.
(2)If the educational representative resigns from the appointment, he or she must provide notice to the court and to the child's attorney and may use Educational Representative or Surrogate Parent Information (form JV-537) to provide this notice. Once notice is received, the child's attorney may request a hearing for appointment of a new educational representative by filing form JV-539 and must provide notice of the hearing to the following: the parents or guardians, unless otherwise indicated on the most recent form JV-535; the social worker; the probation officer; the Court Appointed Special Advocate (CASA) volunteer; and all other persons required to be given notice under section 293. The hearing must be set within 14 days of receipt of the request for hearing. The court on its own motion may direct the clerk to set a hearing.
(Subd (g) adopted effective January 1, 2008.)
(h) Service of order
The clerk will provide a copy of the completed form JV-535 and any received form JV-536 or JV-537 to the child if 10 years or older, the child's attorney, the social worker and the probation officer, the foster youth liaison, as defined in Education Code section 48853.5, and the educational representative at the end of the proceeding or no later than seven calendar days after the date of the order. The clerk will make the form available to the parents or guardians, unless otherwise indicated on the form; the CASA volunteer; and, if requested, all other persons provided notice under section 293. Whoever is directed by the court on form JV-535 must provide a copy of the form to the local education agency.
(Subd (h) adopted effective January 1, 2008.)
(i) Education and training of educational representative
If the educational representative asks for assistance in obtaining education and training in the laws incorporated in rule 5.651(a), the court must direct the clerk, social worker, or probation officer to inform the educational representative of all available resources, including resources available through the California Department of Education and the local education agency.
(Subd (i) adopted effective January 1, 2008.)
(j) Notice and participation in juvenile court hearings
(1)The educational representative must receive notice of all juvenile court hearings regarding or affecting the child's education. This includes the notice and participation provided in rule 5.530 for all regularly scheduled juvenile hearings, rule 5.512 for joint assessment hearings, and rule 5.575 for joinder proceedings.
(2)The educational representative may use form JV-537 to explain the child's educational needs. The court may allow the educational representative to be present for the purposes of participating in the portions of the juvenile court hearing that concern the child's education, including school placement, and of responding to questions or issues raised by the form. The court may allow the educational representative to participate in any mediation as provided in rule 5.518.
(Subd (j) adopted effective January 1, 2008.)
Rule 5.650 amended effective January 1, 2008; adopted as rule 1499 effective July 1, 2002; previously amended effective January 1, 2004; previously amended and renumbered effective January 1, 2007.
Advisory Committee Comment
Under the Individuals With Disabilities Education Act (IDEA), the court may appoint a surrogate parent for a child to represent the child in all matters relating to the identification, evaluation, and educational placement of the child and to the provision of the child's free, appropriate public education. (20 U.S.C. § 1415(b)(2); 34 C.F.R. § 300.519.) Under Welfare and Institutions Code sections 361 and 726, the court may appoint a responsible adult as an educational representative to represent the child's educational needs when the parent's educational rights have been limited. When the court appoints an educational representative, that person is responsible for representing all the child's educational needs, including any special education and related services needs. When making this appointment, the court and all court participants are encouraged to look to all persons in the child's life, including relatives, nonrelated extended family members, and those persons with whom the child has an important relationship, to represent the child's educational needs.
If the court cannot find anyone to appoint as the child's educational representative and special education needs are not indicated, sections 361 and 726 state that the court can make education decisions for the child with the input of interested persons. However, if the court cannot find someone to appoint as educational representative and special education is indicated, the court must refer the matter to the local education agency (LEA) for appointment of a surrogate parent. Sections 361 and 726 do not permit the court to make educational decisions for a child in these cases. The surrogate parent assigned by the LEA acts as a parent for the purpose of making educational decisions on behalf of the child. (Gov. Code, § 7579.5(c); Ed. Code, § 56028; 34 C.F.R. § 300.30(b)(2); see 20 U.S.C. §§ 1401(9), 1414(d).)