BILL ANALYSIS SENATE JUDICIARY COMMITTEE Martha M. Escutia, Chair 2001-2002 Regular Session AB 886 A Assembly Member Simitian B As Amended May 28, 2002 Hearing Date: June 4, 2002 8 Probate Code; Welfare and Institutions Code 8 GMO:cjt 6 SUBJECT Parental Authority: Educational Decisions DESCRIPTION This bill would: require the dependency court or probate court, whenever the court suspends or limits the power or right of a parent or a guardian or conservator to make educational decisions for a dependent child or a ward, to appoint a responsible adult with legal custody to make educational decisions for the child. provide that a person who would have a conflict of interest in representing the child may not be appointed to make educational decisions for the child, and would define what "conflict of interest" would disqualify that person from the appointment. BACKGROUND Sponsored by the Los Angeles County Office of Education, this bill is intended to ensure the continuity and accessibility of educational services for students who are dependents or wards of the court. Often, where the court limits parental rights, the sponsor states, nobody is officially appointed in the court's order to make educational decisions for the child, resulting in the child (more) AB 886 (Simitian) Page 2 being deprived of access to appropriate educational services. Also, when a child is moved from foster or group homes for whatever reason, the child loses residency in a particular school district, which causes problems in gaining continuous access to needed educational services. This bill is intended to cure this deficiency in the law by requiring the court to appoint a responsible adult with legal custody of the child, whose residence can be used to establish residence for the child, and whose authority is clear, to make educational decisions for the child. CHANGES TO EXISTING LAW Existing law grants to the guardian or conservatee of the person authority over the education of the ward or conservatee, subject to certain limitations. [Probate Code Section 2351.] Existing law permits the dependency court to limit the control that a parent or guardian may exercise over a child, and requires any such limitation to be addressed in a court order. [Welfare and Institutions Code Sections 361 and 726.] Existing law requires a local educational agency to appoint a surrogate parent for a child to represent the child in educational decisions in specified circumstances, including when the child becomes a ward or dependent of the court and is referred for special educational services, or when no parent for the child can be identified, or when the parent cannot be located. [Government Code Section 7579.5.] This bill would require the court, whenever it limits or suspends the rights of a parent, guardian or conservator of the child, or removes such guardian or conservator, to appoint a responsible adult to make educational decisions for the child until such time as the limitations of authority are removed, the minor turns 18 and is competent to make educational decisions, another responsible adult is appointed, or a guardian or conservator is appointed with powers to make educational decisions for the child. The bill would disqualify a person with a conflict of interest from serving as a responsible adult for the child, AB 886 (Simitian) Page 3 and define "conflict of interest" for purposes of the disqualification. COMMENT 1. Stated need for the bill According to the sponsor, the Los Angeles County Office of Education, a dependent child may not receive appropriate educational services in the community where he or she is placed for several reasons. One reason is that while a dependency court may limit the right of the child's parent or guardian to make educational decisions for the child, the court usually fails to appoint another adult to make such decisions for the child. Another is that if a child is placed in a foster home, group home, emergency shelter or hospital, the location of the institution may determine residency for schooling purposes, but not the adult who would be responsible for making educational decisions. A third scenario is when the guardian of a ward who is a minor has resigned or is removed, there is no adult responsible for educational decisions until the court appoints a successor guardian or unless a temporary guardian is appointed. California's juvenile court judges as well as social workers and children's advocates have been concerned that these children, already handicapped by abuse or neglect by their parents or guardians, are not receiving services to which they and other learning-disabled children from normal homes are entitled under federal and state law. AB 886 intends to cure this deficiency in the system so that a dependent child (or a ward) may receive education services that would otherwise be available to the child, and ensure that the child continues to receive these services. 2. Court may not appoint a person with conflict of interest This bill would ensure that no individual who has a conflict of interest is appointed to make educational decisions for the child. AB 886 would define conflict of interest as "any interest that might restrict or bias his AB 886 (Simitian) Page 4 or her ability to make educational decisions, including but not limited to those...prohibited by Section 1126 of the Government Code and the receipt of compensation or attorney's fees for services provided pursuant to this section." Section 1126 of the Government Code prohibits a local agency officer or employee from engaging in employment or other activity for compensation which is inconsistent, incompatible or in conflict with his or her duties as a local agency officer or in conflict with the duties, functions or responsibilities of the employer-agency. It also prohibits a local agency officer from performing any work for compensation outside his or her employer-agency where the work would be subject to approval by another officer, employee, board or commission of the employer-agency, except where duly approved by the employer-agency. An example of one who may not be appointed under this section would be the social worker handling the juvenile or guardianship case, or any other employee of the court. The other conflict of interest description would apply to an attorney who represents the child or any other party in the juvenile or guardianship proceedings. However, it is not clear whether a foster parent that "receives compensation" for caring for a dependent child would have a conflict of interest under this bill. SHOULD THIS BE CLARIFIED? 3. Court must appoint responsible adult to make educational decisions for a dependent or ward; appointment is temporary a. When appointment is necessary This bill would amend both the Welfare and Institutions Code (WIC) and the Probate Code to require the court to appoint a responsible adult to make educational decisions for a child. In dependency proceedings under the WIC, the court, if necessary, limits the rights of a parent to custody and control of a child, until such time as the family is reunited or parental rights are terminated and the child is placed for adoption or legal guardianship. Under the AB 886 (Simitian) Page 5 Probate Code, a child may be made a ward of a legal guardian upon petition and order of the court. In either case, if the court fails to include, in the order limiting parental control and authority, specific orders regarding educational decisions for the child, or if the court fails to appoint a temporary or successor guardian with full authority when an existing guardian is removed, the law provides that a school district may appoint a surrogate parent for the child for the purpose of making educational decisions for the child. However, a surrogate parent has limited authority, is usually involved only when the child has exceptional educational needs, and does not confer residency to the child for school district purposes. Also, since a surrogate parent is appointed by the school district, a child who is moved out of the district loses that surrogate parent and must wait for a new surrogate parent to be appointed by the new district into which the child was moved. The handicap handed to a child who is moved several times in one school year is thus easy to see. The sponsor provided an example of a child who was essentially "court orphaned" without an adult to oversee his educational placements. The court terminated parental rights of this child without an adoption pending, and the child was moved between foster (group) homes and finally to the McLaren Children's Center a total of twelve times in eight months, all the while without an adult being responsible for his schooling. This scenario is repeated for many dependent children all over the state, according to the sponsor, but happens most frequently in larger jurisdictions where children are placed in institutional settings. The lack of consistency and follow-up is obviously detrimental to the education of a child, they state, and they hope that this bill would correct the situation for these children. AB 886 (Simitian) Page 6 b. Responsible adult must have legal custody but no conflict of interest This bill would require a dependency or probate court to appoint a "responsible adult with legal custody" for the purpose of making educational decisions for the child. The bill would disqualify from appointment as a responsible adult those persons who have a conflict of interest. However, no guidelines exist in state law for determining whom the court may appoint. Although the term "responsible adult" is not defined in the bill, the court has the discretion to inquire and determine who among those who may be related or associated with the child can discharge the responsibility appropriately. Among those who clearly may be appointed are a guardian or conservator, a temporary guardian or conservator, a noncustodial parent who has joint legal custody, and a foster parent given legal custody by the court (e.g., a long-term foster parent who has been given legal custody but not full guardianship by the juvenile court). However, there may be other responsible adults with whom the child lives, who may not have legal custody of the child but whom the court may deem responsible enough to make educational decisions, such as a relative, foster parent or surrogate parent (appointed under the Education Code for children with special education needs). By limiting the potential appointees to those "responsible adults with legal custody" this bill may be limiting the flexibility of the court to choose what is in the best interest of the child. SHOULD THE POTENTIAL APPOINTEE SIMPLY BE "A RESPONSIBLE ADULT"? c. Appointment is temporary, but responsible adult must have legal custody In the case where the court removes the guardian of a ward who is a minor, the court's appointment of a responsible adult would last until a successor AB 886 (Simitian) Page 7 guardian is appointed, or until the guardian or conservator is again authorized to make educational decisions for the child. In the case where the dependency court has limited or removed authority and control from a parent or guardian, the appointment of a responsible adult for educational decision-making would last until the parent or guardian's right to make those decisions is restored, or another responsible adult is appointed, or the child turns 18, unless the child is deemed incompetent to make or chooses not to make those educational decisions for himself or herself, or a guardian or conservator is appointed to make educational decisions for the child. The temporary nature of the appointment reflects the fact that where reunification services are successful, for example, authority regarding educational decisions should return seamlessly to the parent or guardian, or where there is, in fact, a conflict of interest later discovered, the authority of the disqualified person should end immediately upon appointment of a new responsible adult. Suggested amendment: The appointment of a guardian or conservator "to make educational decisions for the child" [page 3, lines 31 and 32] is confusing. A "guardian" or "conservator" has, under the Probate Code, full control and power over the minor's life, unless those powers are limited by the court order. Including the phrase "to make educational decisions for the child" to this provision is therefore redundant and unnecessary and may be construed to instead limit the power and authority of a guardian or conservator to only the power to make educational decisions. Suggested amendment: The County Welfare Directors Association of California points out that under existing law, long-term foster care parents have the statutory right to make educational decisions for the children in their care. There may therefore be a conflict if the court appoints another "responsible adult" to make educational decisions for the child AB 886 (Simitian) Page 8 after the child is placed in long-term foster care. CWDA has suggested, and the author has agreed to the following amendment: On page 3, between lines 31 and 33, insert: (5) The child is placed into long-term foster care pursuant to Section 366.21(g)(3), Section 366.22, or Section 366.26, at which time the foster parent shall have the right to represent the child in educational matters pursuant to Education Code 56055. 4. Related pending legislation SB 1677 (Alpert) also deals with the appointment of a responsible person to make education decisions for a dependent of the court. That bill was heard in the Senate Education Committee, and was amended to reflect the changes that this bill would make. SB 1677 also deals with the authority of surrogate parents who are appointed by the school to evaluate and sign off on individualized education plans for children with exceptional needs or where the local school agency cannot locate a parent of the child. There is now no conflict between the two bills. Support: California County Superintendents Educational Services Association; California Teachers Association; California Judges Association; California School Boards Association Opposition: None Known HISTORY Source: Los Angeles County Office of Education Related Pending Legislation: SB 1677 (see Comment 4) Prior Legislation: AB 2392 (Corbett, 2000, vetoed by Governor Davis) would have allowed appointment of foster parents AB 886 (Simitian) Page 9 as surrogate parents as well as expand the class of persons who may request assessments for special education needs. AB 1020 (Corbett, 1999, vetoed by Governor Davis) was essentially the same as AB 2392. AB 2375 (Honda, 2000, vetoed by Governor Davis) was identical to AB 645 (Honda, 1999, also vetoed by Governor Davis) would have required special education services to be provided to all dependent children. The veto message expressed support for special educational services for dependent children but concern about the costs. The relevant provisions of these two bills are the appointments of foster parents as surrogate parents with authority to request assessments for special education needs. Prior Vote: Asm. Ed. (vote irrelevant, the bill contained different provisions); Asm. Jud. (Ayes 9, Noes 0); Asm. Floor (Ayes 74, Noes 0); Sen. Ed. (Ayes 10, Noes 0) **************