Representing children with special needs throughout california and nevada

Who Can Act as a “Parent” to Special Needs Children?

In a recent case, Nina Z. appealed the termination of her parental rights to her children. The six children all suffered from some developmental delay. Nina’s live-in boyfriend, Charles suffered from mental health issues and admitted lifting one of the children up by the throat, tying his hands and feet and placing socks in his mouth. In addition, as a form of discipline, he forced their son to drink hot sauce and repeatedly run up and down the stairs until he couldn’t run anymore. Charles moved out of the home, but Nina continued to see him on a regular basis.  The San Diego County Health and Human Services Agency filed petitions claiming Nina’s children were at risk and then placed them in a temporary foster care and then in a licensed foster care facility.  Nina’s parental rights were eventually terminated and the children were placed for adoption after she failed in her appeal to win back custody. In re Phillip Z., Not Reported in Cal.Rptr.3d, 2013 WL 3809045 (Cal.App. 4 Dist. July 22, 2013)

Who can make educational decisions for Nina’s children?

The Individuals with Disabilities Education Act (IDEA), is the major federal law governing special education.  It defines the term “parent” very broadly.

(a) Parent means—

(1) A biological or adoptive parent of a child;

(2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;

(3) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);

(4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or

(5) A surrogate parent who has been appointed in accordance with § 300.519 or section 639(a)(5) of the Act.

(b) (1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.

(2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the “parent” of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the “parent” for purposes of this section.  34 CFR §300.30

Here, Nina’s rights to make educational decisions on behalf of her children probably ended once they were placed in the temporary foster home.  The temporary foster parent, care facility and eventually the adoptive parents became the decision-makers either by order of the dependency judge or automatically under federal and state law.  Charles probably lost any educational rights that he might have had once he moved out of the home and certainly after the court terminated parental rights.  If Nina had allowed her children to live with one of their grandparents, then that grandmother or grandfather may have been allowed to make important decisions regarding the children’s educational placement and services.

 


Questions about who can make educational decisions for your special needs child?  For more than 10 years, ADAMS ESQ has represented hundreds of special needs children throughout California and Nevada.

Ms. Adams’ and her experienced staff represent the interests of children from the ages of 3 through 22 who qualify or should qualify for special education and related services provided by their local school districts.  Contact ADAMS ESQ today to get answers to your questions.  They can be reached at 1-800-785-6713 or oaklandadmin@adamsesq.com.

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