CENTER FOR LAW AND EDUCATION

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Question:         Must a state or local school system appoint a surrogate parent for all children who are wards of the state, even if a foster parent is willing to act as the child’s parent for purposes of educational decision making under IDEA?

Answer:           Not necessarily. IDEA provides that a surrogate parent must be appointed “whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State.” 20 U.S.C. §1415(b)(2); see also 34 C.F.R. §300.519(1999). The March 12, 1999 IDEA regulations, however, provide that a foster parent may be considered a parent for IDEA purposes if (1) state law does not so prohibit; (2) the natural parents' authority to make educational decisions on the child's behalf has been extinguished under State law; and (3) the foster parent has an ongoing, long-term parental relationship with the child, is willing to make the educational decisions IDEA requires of parents and has no interest that would conflict with the interests of the child. 34 C.F.R. §300.20 (1999). Thus a situation might exist where a child both has a “parent” – by virtue of having a foster parents under circumstances that meet the criteria of 34 C.F.R. §300.20 – and so would seem not to need a surrogate, and is a ward of the state, thus requiring appointment of a surrogate.

            In the past, the U.S. Department of Education/Office of Special Education Programs (“OSEP”), which enforces IDEA, took the position that a surrogate parent must be appointed for any child who is a ward of the state, regardless of whether the child has a foster parent who would otherwise be considered to be acting as a parent, and so considered a parent, for IDEA purposes. See, e.g., Letter to Reynolds, EHLR 211:470 (1987); Letter to Thompson, 23 IDELR 890 (1995). However, with the promulgation of the new IDEA regulations in March 1999, OSEP has changed its view. In its analysis/commentary on the regulations (published in the March 12, 1999 Federal Register along with the regulations), OSEP states as follows:

“In situations where a child who is a ward of the state has a foster parent who meets the definition of parent in §300.20 and the foster parent is acting as the parent, the public agency should determine whether further steps are necessary to ensure that the rights of the child are protected. In most cases where the foster parent meets the definition of a parent and is acting as the parent, there would be no need to appoint a surrogate, unless the agency determined that in the particular circumstances of the case a surrogate was necessary to ensure that the rights of the child were protected.”

64 Federal Register at 12616 (March 12, 1999) (emphasis in original).

            In addition, for two cases holding that insofar as the foster parents were acting as parents, and had been doing so for years, appointment of a surrogate was unnecessary and inappropriate, see Criswell v. State Department of Education, EHLR DEC. 558:156 (D. M.D. Tenn. 1986), and Converse County Sch. Dist. No. Two v. Pratt , 27 IDELR 580 (D. Wyo. 1997).