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2014 California Rules of Court

Rule 5.651. Educational and developmental-services decisionmaking rights

(a) Applicability (§§ 213.5, 319(g), 358, 358.1, 361(a), 362(a), 364, 366.21, 366.22, 366.23, 366.26, 366.27(b), 366.3(e), 726, 727.2(e), 4500 et seq., 11404.1; Ed. Code, §§ 48645 et seq., 48850 et seq., 49069.5, 56028, 56055, and 56155 et seq.; Gov. Code, §§ 7573-7579.6; 20 U.S.C. § 1400 et seq.; 29 U.S.C. § 794; 42 U.S.C. § 12101 et seq.)

This rule incorporates all rights with respect to education or developmental services recognized or established by state or federal law and applies:

(1)To any child, or any nonminor or nonminor dependent youth, for whom a petition has been filed under section 300, 601, or 602 until the petition is dismissed or the court has terminated dependency, delinquency, or transition jurisdiction over that person; and

(2)To every judicial hearing related to, or that might affect, the child's or youth's education or receipt of developmental services.

(Subd (a) amended effective January 1, 2014.)

(b) Conduct of hearings

(1)To the extent the information is available, at the initial or detention hearing the court must consider:

(A)Who holds educational and developmental-services decisionmaking rights, and identify the rights holder or holders;

(B)Whether the child or youth is enrolled in, and is attending, the child's or youth's school of origin, as that term is defined in Education Code section 48853.5(f);

(C)If the child or youth is at risk of removal from or is no longer attending the school of origin, whether:

(i)In accordance with the child's or youth's best interest, the educational liaison, as described in Education Code section 48853.5(b), (d), and (e), in consultation with, and with the agreement of, the child or youth and the parent, guardian, or other person holding educational decisionmaking rights, recommends the waiver of the child's or youth's right to attend the school of origin;

(ii)Before making any recommendation to move a foster child or youth from his or her school of origin, the educational liaison provided the child or youth and the person holding the right to make educational decisions for the child or youth with a written explanation of the basis for the recommendation and how this recommendation serves the foster child's or youth's best interest as provided in Education Code section 48853.5(e)(7);

(iii)If the child or youth is no longer attending the school of origin, the local educational agency obtained a valid waiver of the child's or youth's right to continue in the school of origin under Education Code section 48853.5(e)(1) before moving the child or youth from that school; and

(iv)The child or youth was immediately enrolled in the new school as provided in Education Code section 48853.5(e)(8).

(D)In a dependency proceeding, whether the parent's or guardian's educational or developmental-services decisionmaking rights should be temporarily limited and an educational rights holder temporarily appointed using form JV-535; and

(E)Taking into account other statutory considerations regarding placement, whether the out-of-home placement:

(i)Is the environment best suited to meet the exceptional needs of a child or youth with disabilities and to serve the child's or youth's best interest if he or she has a disability; and

(ii)Promotes educational stability through proximity to the child's or youth's school of origin.

(2)At the dispositional hearing and at all subsequent hearings described in (a)(2), the court must:

(A)Consider and determine whether the child's or youth's educational, physical, mental health, and developmental needs, including any need for special education and related services, are being met;

(B)Identify the educational rights holder on form JV-535; and

(C)Direct the rights holder to take all appropriate steps to ensure that the child's or youth's educational and developmental needs are met.

The court's findings and orders must address the following:

(D)Whether the child's or youth's educational, physical, mental health, and developmental-services needs are being met;

(E)What services, assessments, or evaluations, including those for developmental services or for special education and related services, the child or youth may need;

(F)Who must take the necessary steps for the child or youth to receive any necessary assessments, evaluations, or services;

(G)If the child's or youth's educational placement changed during the period under review, whether:

(i)The child's or youth's educational records, including any evaluations of a child or youth with a disability, were transferred to the new educational placement within two business days of the request for the child's or youth's enrollment in the new educational placement; and

(ii)The child or youth is enrolled in and attending school.

(H)Whether the parent's or guardian's educational or developmental-services decisionmaking rights should be limited or, if previously limited, whether those rights should be restored.

(i)If the court finds that the parent's or guardian's educational or developmental-services decisionmaking rights should not be limited or should be restored, the court must explain to the parent or guardian his or her rights and responsibilities in regard to the child's education and developmental services as provided in rule 5.650(e), (f), and (j); or

(ii)If the court finds that the parent's or guardian's educational or developmental-services decisionmaking rights should be or remain limited, the court must designate the holder of those rights. The court must explain to the parent or guardian why the court is limiting his or her educational or developmental-services decisionmaking rights and must explain the rights and responsibilities of the educational rights holder as provided in rule 5.650(e), (f), and (j); and

(I)Whether, in the case of a nonminor or nonminor dependent youth who has chosen not to make educational or developmental-services decisions for himself or herself or has been deemed incompetent, it is in the best interests of the youth to appoint or to continue the appointment of an educational rights holder.

(Subd (b) amended effective January 1, 2014.)

(c) Reports for hearings related to, or that may affect, education or developmental services

This subdivision applies at all hearings, including dispositional and joint assessment hearings. The court must ensure that, to the extent the information was available, the social worker or the probation officer provided the following information in the report for the hearing:

(1)The child's or youth's age, behavior, educational level, and developmental status and any discrepancies between that person's age and his or her level of achievement in education or level of cognitive, physical, and emotional development;

(2)The child's or youth's educational, physical, mental health, or developmental needs;

(3)Whether the child or youth is participating in developmentally appropriate extracurricular and social activities;

(4)Whether the child or youth is attending a comprehensive, regular, public or private school;

(5)Whether the child or youth may have physical, mental, or learning-related disabilities or other characteristics indicating a need for developmental services or special education and related services as provided by state or federal law;

(6)If the child is 0 to 3 years old, whether the child may be eligible for or is already receiving early intervention services or services under the California Early Intervention Services Act (Gov. Code, § 95000 et seq.) and, if the child is already receiving services, the specific nature of those services;

(7)If the child is between 3 and 5 years old and is or may be eligible for special education and related services, whether the child is receiving the early educational opportunities provided by Education Code section 56001 and, if so, the specific nature of those opportunities;

(8)Whether the child or youth is receiving special education and related services or any other services through a current individualized education program and, if so, the specific nature of those services;

(i)A copy of the current individualized education program should be attached to the report unless disclosure would create a risk of harm. In that case, the report should explain the risk.

(9)Whether the child or youth is receiving services under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.) and, if so, the specific nature of those services;

(i)A copy of any current Section 504 plan should be attached to the report unless disclosure would create a risk of harm. In that case, the report should explain the risk.

(10)Whether the child or youth is or may be eligible for developmental services or is already receiving developmental services and, if that person is already receiving services, the specific nature of those services;

(i)A copy of any current individualized family service plan or individual program plan should be attached to the report unless disclosure would create a risk of harm. In that case, the report should explain the risk.

(11)Whether the parent's or guardian's educational or developmental-services decisionmaking rights have been or should be limited or restored;

(12)If the social worker or probation officer recommends that the court limit the parent's or guardian's rights to make educational or developmental-services decisions, the reasons those rights should be limited and the actions that the parent or guardian may take to restore those rights if they are limited;

(13)If the parent's or guardian's educational or developmental-services decisionmaking rights have been limited, the identity of the designated or appointed educational rights holder or surrogate parent;

(14)Recommendations and case plan goals to meet the child's or youth's identified educational, physical, mental health, and developmental-services needs, including all related information listed in section 16010(a) as required by section 16010(b);

(15)Whether any orders to direct an appropriate person to take the necessary steps for the child to receive assessments, evaluations, or services, including those for developmental services or for special education and related services, are requested; and

(16)In the case of a joint assessment, separate statements by the child welfare department and the probation department, each addressing whether the child or youth may have a disability and whether the child or youth needs developmental services or special education and related services or qualifies for any assessment or evaluation required by state or federal law.

(Subd (c) amended effective January 1, 2014.)

(d) Continuance, stay, or suspension (§§ 357, 358, 702, 705)

If the court continues the dispositional hearing under rule 5.686 or 5.782 or stays the proceedings or suspends jurisdiction under rule 5.645, the child must continue to receive all services or accommodations required by state or federal law.

(Subd (d) amended effective January 1, 2014.)

(e) Change of placement affecting the child's or youth's educational stability (§§ 16010, 16010.6; Ed. Code §§ 48850-48853.5)

This subdivision applies to all changes of placement, including the initial placement and any subsequent change of placement.

(1)At any hearing to which this rule applies that follows a decision to change the child's or youth's placement to a location that could lead to removal from the school of origin, the placement agency must demonstrate that, and the court must determine whether:

(A)The social worker or probation officer notified the court, the child's or youth's attorney, and the educational rights holder or surrogate parent, no more than one court day after making the placement decision, of the proposed placement decision.

(B)If the child or youth had a disability and an active individualized education program before removal, the social worker or probation officer, at least 10 days before the change of placement, notified in writing the local educational agency that provided a special education program for the child or youth before removal and the receiving special education local plan area, as described in Government Code section 7579.1, of the impending change of placement.

(2)After receipt of the notice in (1):

(A)The child's or youth's attorney must, as appropriate, discuss the proposed placement change and its effect on the child's or youth's right to attend the school of origin with the child or youth and the person who holds educational rights. The child's or youth's attorney may request a hearing by filing form JV-539. If requesting a hearing, the attorney must:

(i)File form JV-539 no later than two court days after receipt of the notice in (1); and

(ii)Provide notice of the hearing date, which will be no later than five court days after the form was filed, to the parents or guardians, unless otherwise indicated on form JV-535, parental rights have been terminated, or the youth has reached 18 years of age and reunification services have been terminated; the social worker or probation officer; the educational rights holder or surrogate parent; the foster youth educational liaison; the Court Appointed Special Advocate (CASA) volunteer; and all other persons or entities entitled to notice under section 293.

(B)The person who holds educational rights may request a hearing by filing form JV-539 no later than two court days after receipt of the notice in (1). After receipt of the form, the clerk must notify the persons in (e)(2)(A)(ii) of the hearing date.

(C)The court on its own motion may direct the clerk to set a hearing.

(3)If removal from the school of origin is disputed, the child or youth must be allowed to remain in the school of origin pending this hearing and pending the resolution of any disagreement between the child or youth, the parent, guardian, or educational rights holder, and the local educational agency.

(4)If the court sets a hearing, the social worker or probation officer must provide a report no later than two court days after the hearing is set that includes the information required by (b)(1)(C) as well as the following:

(A)Whether the foster child or youth has been allowed to continue his or her education in the school of origin to the extent required by Education Code section 48853.5(e)(1);

(B)Whether a dispute exists regarding the request of a foster child or youth to remain in the school of origin and whether the foster child or youth has been allowed to remain in the school of origin pending resolution of the dispute;

(C)Information addressing whether the information-sharing and other requirements in section 16501.1(c)(4) and Education Code section 49069.5 have been met;

(D)Information addressing how the proposed change serves the best interest of the child or youth;

(E)The responses of the child, if over 10 years old, or youth; the child's or youth's attorney; the parent, guardian, or other educational rights holder; the foster youth educational liaison; and the child's or youth's CASA volunteer to the proposed change of placement, specifying whether each person agrees or disagrees with the proposed change and, if any person disagrees, stating the reasons; and

(F)A statement from the social worker or probation officer confirming that the child or youth has not been segregated in a separate school, or in a separate program within a school, because the child or youth is placed in foster care.

(Subd (e) amended effective January 1, 2014.)

(f) Court review of proposed change of placement affecting the right to attend the school of origin

(1)At a hearing set under (e)(2), the court must:

(A)Determine whether the placement agency and other relevant parties and advocates have fulfilled their obligations under section 16000(b), 16010(a), and 16501.1(f)(8);

(B)Determine whether the proposed school placement meets the requirements of this rule and Education Code sections 48853.5 and 49069.5, and whether the placement is in the best interest of the child or youth;

(C)Determine what actions are necessary to ensure the protection of the child's or youth's educational and developmental-services rights; and

(D)Make any findings and orders needed to enforce those rights, which may include an order to set a hearing under section 362 to join the necessary agencies regarding provision of services, including the provision of transportation services, so that the child or youth may remain in his or her school of origin.

(2)When considering whether it is in the child's or youth's best interest to remove him or her from the school of origin, the court must consider the following:

(A)Whether the parent, guardian, or other educational rights holder believes that removal from the school of origin is in the child's or youth's best interest;

(B)How the proposed change of placement will affect the stability of the child's or youth's school placement and the child's or youth's access to academic resources, services, and extracurricular and enrichment activities;

(C)Whether the proposed school placement would allow the child or youth to be placed in the least restrictive educational program; and

(D)Whether the child or youth has the educational and developmental services and supports, including those for special education and related services, necessary to meet state academic achievement standards.

(3)The court may make its findings and orders on Findings and Orders Regarding Transfer From School of Origin (form JV-538).

(Subd (f) amended effective January 1, 2014.)

Rule 5.651 amended effective January 1, 2014; adopted effective January 1, 2008.

Advisory Committee Comment

A child or youth in, or at risk of entering, foster care has a statutory right to a meaningful opportunity to meet the state's academic achievement standards. To protect this right, the juvenile court, advocates, placing agencies, care providers, educators, and service providers must work together to maintain stable school placements and ensure that the child or youth is placed in the least restrictive educational programs and has access to the academic resources, services, and extracurricular and enrichment activities that are available to other pupils. This rule, sections 362 and 727, and rule 5.575 provide procedures for coordinating the provision of services to ensure that the child's or youth's educational and developmental-services needs are met.

Congress has found that improving the educational performance of children with disabilities is an essential prerequisite to ensuring their equality of opportunity, full participation in education, and economic self-sufficiency. Children and youth in foster care are disproportionately represented in the population of pupils with disabilities and face systemic challenges to attaining self-sufficiency. Children and youth in foster care have rights arising out of federal and state law, including the IDEA, the ADA, and section 504 of the Rehabilitation Act of 1973. To comply with federal requirements regarding the identification of children and youth with disabilities and the provision of services to those children and youth who qualify, the court, parent or guardian, placing agency, attorneys, CASA volunteer, local educational agencies, and educational rights holders must affirmatively address the child's or youth's educational and developmental-services needs. The court must continually inquire about the educational and developmental-services needs of the child or youth and the progress being made to enforce any rights the child or youth has under these laws.

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