2013 California Rules of Court
Rule 5.651. Educational rights of children before the juvenile court
(a) Applicability (§§ 213.5, 319, 358, 358.1, 364, 366.21, 366.22, 366.23, 366.26, 366.28, 366.3, 727.2, 11404.1; Gov. Code, § 7579.1; 20 U.S.C. § 1400 et seq.; 29 U.S.C. § 794; 42 U.S.C. § 12101 et seq.)
This rule has the following applicability and incorporates the rights established by the following laws:
(1)
The rule applies to all children for whom petitions have been filed under section 300, 601, or 602;
(2)The rule applies to every hearing before the court affecting or related to the child's education, including detention, jurisdiction, disposition, and all regularly scheduled review hearings; and
(3)The rule incorporates the rights established by the following laws: the Individuals With Disabilities Education Act (20 U.S.C. § 1400 et seq.), the Americans With Disabilities Act (42 U.S.C. § 12101 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.), and the education rights of foster children as provided in Assembly Bill 490 (Stats. 2003, ch. 862) and Assembly Bill 1858 (Stats. 2004, ch. 914).
(b) Conduct of hearings related to, or that may affect, a child's education
(1)To the extent the information is available, at the initial or detention hearing the court must consider:
(A)Who holds educational rights;
(B)If the child was enrolled in, and is attending, the child's school of origin as defined in Education Code section 48853.5(e);
(C)If the child is no longer attending the school of origin, whether;
(i)In accordance with the child's best interest, the educational liaison, as defined in Education Code section 48853.5(b), in consultation with, and with the agreement of, the child and the parent or guardian or other educational representative, recommends that the child's right to attend the school of origin be waived;
(ii)Prior to making any recommendation to move a foster child from his or her school of origin, the educational liaison provided the child and the person holding the right to make educational decisions for the child with a written explanation stating the basis for the recommendation and how this recommendation serves the foster child's best interest as provided in Education Code section 48853.5(d)(3);
(iii)Without obtaining a waiver, the child was not afforded his or her right to attend his or her school of origin under Education Code section 48853.5(d)(1); and
(iv)The child was immediately enrolled in the new school as provided in Education Code section 48853.5(d)(4).
(D)Whether the parent's or guardian's educational rights should be temporarily limited; 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 unique needs of children with disabilities and to serve the child's best interest if he or she has a disability; and
(ii)Promotes educational stability through proximity to the child's school.
(2)At the disposition hearing and at all subsequent hearings provided for in (a), the juvenile court must address and determine the child's general and special education needs, identify a plan for meeting those needs, and provide a clear, written statement using Findings and Orders Limiting Right to Make Educational Decisions for the Child, Appointing Educational Representative, and Determining Child's Educational Needs (form JV-535), specifying the person who holds the educational rights for the child. The court's findings and orders must address the following:
(A)Whether the child's educational, physical, mental health, and developmental needs are being met;
(B)Any services, assessments, or evaluations, including those for special education and related services, that the child may need;
(C)Who is directed to take the necessary steps for the child to begin receiving any necessary assessments, evaluations, or services;
(D) If the child's educational placement changed during the reporting period, whether
(i)The child's educational records, including any evaluations of a child with a disability, were transferred to the new educational placement within two business days of the request for the child's enrollment in the new educational placement; and
(ii)The child is enrolled in and attending school; and
(E)Whether the parent's or guardian's educational rights should be limited;
(i)If the court finds the parent's or guardian's educational rights should not be limited, the court must direct the parent to his or her rights and responsibilities in regard to the child's education as provided in rule 5.650(e) and (f); or
(ii)If the court finds the parent's or guardian's educational rights should be limited, the court must determine who will hold the child's educational rights. The court must explain to the parent or guardian why the court is limiting his or her educational rights and must direct the parent or guardian to the rights and responsibilities of the education representative as provided in rule 5.650(e) and (f).
(c) Reports for hearings related to, or that may affect, a child's education
This subdivision applies at all hearings, including disposition and joint assessment hearings. The court must ensure that, to the extent the information was available, the social worker and the probation officer provided the following information in the report for the hearing:
(1)The child's age, behavior, educational and developmental achievement, and any discrepancies in achievement in education and in cognitive, physical, and emotional development;
(2)Identification of the child's educational, physical, mental health, or developmental needs;
(3)Whether the child is participating in developmentally appropriate extracurricular and social activities;
(4)Whether the child is attending a comprehensive, regular, public or private school;
(5)Whether the child may have physical, mental, or learning-related disabilities or other special education needs and is in need of or is already receiving special education and related services as provided by the laws incorporated in rule 5.651(a)(3);
(6)If the child is 0 to 3 years old, whether the child may be eligible for or is already receiving services available under the California Early Intervention Services Act (Gov. Code, § 95000 et seq.), and whether those services are appropriate;
(7)If the child is between 3 and 5 years and is or may be eligible for special education services, whether the child is receiving the early educational opportunities provided by Education Code section 56001;
(8)Whether the child is receiving appropriate services through a current individualized education program;
(9)Whether the child is or may be eligible for regional center services or is already receiving regional center services. Copies of the current individual family plan as defined in section 1436 under title 20 of the United States Code and the current life quality assessments as defined in Welfare and Institutions Code section 4570 should be attached to the report;
(10)Whether the parent's or guardian's educational rights have been or should be limited;
(11)If the social worker or probation officer recommends limiting the parent's or guardian's right to make educational 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;
(12)If the parent's or guardian's educational rights have been limited, who holds the child's educational rights;
(13)Recommendations and case plan goals to meet the child's identified educational, physical, mental health, and developmental needs;
(14)Whether any orders to direct an appropriate person to take the necessary steps for the child to begin receiving assessments, evaluations, or services, including those for special education and related services, are requested; and
(15)In the case of joint assessments, a separate statement by each of the two departments regarding whether the respective social worker and probation officer believe that the child may have a disability and whether the child is in need of special education and related services or requires evaluation as required by title 20 United States Code section 1412(a)(3), Education Code section 56425, or section 504 of the Rehabilitation Act of 1973.
(d) Continuances or stay of jurisdiction
If any continuance provided for in rules 5.686 and 5.782 or stay of jurisdiction provided for in rule 5.645 is granted, the child must continue to receive all services or accommodations required by the laws incorporated in rule 5.651(a)(3).
(e) Change of placement affecting the child's right to attend the school of origin
This subdivision applies to all changes of placement including the initial placement and all subsequent changes of placement.
(1)At any hearing that relates to or may affect the child's education and that follows a removal of the child from the school of origin the court must find that:
(A)The social worker or probation officer notified the court, the child's attorney, and the educational representative or surrogate parent that the proposed placement or change of placement would result in a removal of the child from the child's school of origin. The court must find that the notice was provided within 24 hours, excluding nonjudicial days, of the social worker's or probation officer's determination that the proposed change of placement would result in removal of the child from the school of origin.
(B) If the child had a disability and an active individualized education program prior to 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 prior to removal and the receiving special education local plan area, as defined in Government Code section 7579.1, of the impending change of placement.
(2)After receipt of the notice in (1):
(A)The child's attorney must, as appropriate, discuss the proposed move from the school of origin with the child and the person who holds educational rights. The child's attorney may request a hearing by filing Request for Hearing Regarding Child's Education (form JV-539). If requesting a hearing, the child's 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 court date, which will be no later than seven calendar days after the form was filed, to the parents or guardians, unless otherwise indicated on form JV-535; the social worker; the probation officer; the educational representative or surrogate parent; the foster youth liaison, as defined in Education Code section 48853.5; the Court Appointed Special Advocate (CASA) volunteer; and all other persons required by 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 must be allowed to remain in the school of origin pending this hearing and pending any disagreement between the child, parent, guardian, or educational representative and the school district.
(4)If the court, the child's attorney, or the person who holds educational rights requests a hearing, at the hearing the court must find that the social worker or probation officer provided a report no later than two court days after form JV-539 was filed and that the report included the information required by (b)(1)(C)(i) and (ii) and:
(A)Whether the foster child has been allowed to continue his or her education in the school of origin for the duration of the academic school year;
(B)Whether a dispute exists regarding the request of a foster child to remain in the school of origin and whether the foster child has been afforded the right 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)(2) and Education Code section 49069.5 have been followed;
(D)Information addressing how the proposed change serves the best interest of the child;
(E)The responses to the proposed change of placement from the child if over 10 years old, the child's attorney, the parent or guardian, the foster youth liaison, as defined in Education Code section 48853.5, and the child's CASA volunteer, specifying whether each person agrees or disagrees with the proposed change and, if any person disagrees, stating why;
(F)A statement from the person holding educational rights regarding whether the proposed change of placement is in the child's best interest and what efforts have been made to keep the child in the school of origin; and
(G)A statement from the social worker or probation officer confirming that the child has not been segregated in a separate school, or in a separate program within a school, based on the child's status as a child in foster care.
(f) Court review of proposed change of placement affecting the child's right to attend the school of origin
(1)At the hearing set under (e)(2), the court must:
(A)Determine whether the proposed placement meets the requirements of this rule and Education Code sections 48853.5 and 49069.5 and whether the proposed plan is based on the best interest of the child;
(B)Determine what actions are necessary to ensure the child's educational and disability rights; and
(C)Make the necessary findings and orders to enforce these 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 may remain in his or her school of origin.
(2)When considering whether it is in the child's best interest to remain in the school of origin, the court must consider the following:
(A)Whether the parent, guardian, or other educational representative believes that remaining in the school of origin is in the child's best interest;
(B)How the proposed change of placement will affect the stability of the child's school placement and the child's access to academic resources, services, and extracurricular and enrichment activities;
(C)Whether the proposed school placement would allow the child to be placed in the least restrictive educational program; and
(D)Whether the child has the educational supports necessary, including those for special education and related services, 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).
Rule 5.651 adopted effective January 1, 2008.
Advisory Committee Comment
This rule incorporates the requirement of, and rights established by, Assembly Bill 490 (Steinberg; Stats. 2003, ch. 862), Assembly Bill 1858 (Steinberg; Stats. 2004, ch. 914), the Individuals With Disabilities Education Act (IDEA), the Americans With Disabilities Act (ADA), and section 504 of the Rehabilitation Act of 1973. This rule does not limit these requirements or rights. To the extent necessary, this rule establishes procedures to make these laws meaningful to children in foster care.
With the passage of Assembly Bill 490, a child 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 which all students are held. To afford the child this right, the juvenile court, advocates, placing agencies, care providers, and educators must work together to maintain stable school placements and ensure that the child 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 students. This rule, sections 362 and 727, and rule 5.575 provide procedures for ensuring that the child's educational 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 in foster care are disproportionately represented in the population of children with disabilities and inherently face systemic challenges to attaining self-sufficiency. Children in foster care have rights arising out of the IDEA, the ADA, and section 504 of the Rehabilitation Act of 1973. To comply with federal requirements regarding the identification of children with disabilities and the provision of services to those children who qualify, the court, parent or guardian, placing agency, attorneys, CASA volunteer, local education agencies, and educational representatives must affirmatively address the child's educational needs. The court must continually inquire about the education of the child and the progress being made to enforce any rights the child has under these laws.