(a) Order and appointment (§§ 319, 361, 366, 366.27, 366.3, 726, 727.2; Gov. Code, §§ 7579.5-7579.6; 20 U.S.C. § 1415; 34 C.F.R. § 300.519)
Whenever it limits, even temporarily, the rights of a parent or guardian to make educational or developmental-services decisions for a child, the court must use form JV-535 to appoint a responsible adult as educational rights holder or to document that one of the following circumstances exists:
(1) The child is a dependent child or ward of the court and has a court-ordered permanent plan of placement in a planned permanent living arrangement. The caregiver may, without a court order, exercise educational decisionmaking rights under Education Code section 56055 and developmental-services decisionmaking rights under section 361 or 726, and is not prohibited from exercising those rights by section 361, 726, or 4701.6(b), or by 34 Code of Federal Regulations section 300.519 or 303.422; or
(2) The court cannot identify a responsible adult to serve as the child's educational rights holder under section 319, 361, or 726 or under Education Code section 56055; and
(A) The child is a dependent child or ward of the court and is or may be eligible for special education and related services or already has a valid individualized education program, and the court:
(i) Refers the child to the local educational agency for the appointment of a surrogate parent under section 361 or 726, Government Code section 7579.5, and title 20 United States Code section 1415; and
(ii) Will, with the input of any interested person, make developmental-services decisions for the child; or
(B) The appointment of a surrogate parent is not warranted, and the court will, with the input of any interested person, make educational and developmental-services decisions for the child.
(C) If the court must temporarily make educational or developmental-services decisions for a child before disposition, it must order that every effort be made to identify a responsible adult to make future educational or developmental-services decisions for the child.
(Subd (a) amended and relettered effective January 1, 2014; adopted as subd (b) effective January 1, 2004; previously amended effective January 1, 2007, and January 1, 2008.)
(b) Nonminor and nonminor dependent youth (§§ 361, 726, 366.3)
The court may, using form JV-535, appoint or continue the appointment of an educational rights holder to make educational or developmental-services decisions for a nonminor or nonminor dependent youth if:
(1) The youth has chosen not to make educational or developmental-services decisions for himself or herself or is deemed by the court to be incompetent; and
(2) With respect to developmental-services decisions, the court also finds that the appointment or continuance of a rights holder would be in the best interests of the youth.
(Subd (b) adopted effective January 1, 2014.)
(c) Limits on appointment (§§ 319, 361, 726; Ed. Code, § 56055; Gov. Code, § 7579.5(i)-(j); 34 C.F.R. §§ 300.519, 303.422)
(1) The court must determine whether a responsible adult relative, nonrelative extended family member, or other adult known to the child is available and willing to serve as the educational rights holder and, if one of those adults is available and willing to serve, should consider appointing that person before appointing or temporarily appointing a responsible adult not known to the child.
(2) The court may not appoint any individual as the educational rights holder if that person is excluded under, or would have a conflict of interest as defined by, section 361(a) or 726(c), Education Code section 56055, Government Code section 7579.5(i)-(j), 20 United States Code section 1415(b)(2), or 34 Code of Federal Regulations section 300.519 or 303.422.
(Subd (c) amended effective January 1, 2014; adopted effective January 1, 2004; previously amended effective January 1, 2007, and January 1, 2008.)
(d) Referral for appointment of surrogate parent (§§ 361, 726; Gov. Code, § 7579.5; 20 U.S.C. § 1415)
(1) If the court has limited a parent's or guardian's right to make educational decisions for a child and cannot identify a responsible adult to act as the educational rights holder, and the child is or may be eligible for special education and related services or already has an individualized education program, the court must use form JV-535 to refer the child to the responsible local educational agency for prompt appointment of a surrogate parent under Government Code section 7579.5.
(2) If the court refers a child to the local educational agency for appointment of a surrogate parent, the court must order that Local Educational Agency Response to JV-535-Appointment of Surrogate Parent (form JV-536) be attached to form JV-535 and served by first-class mail on the local educational agency no later than five court days from the date the order is signed.
(3) The court must direct the local educational agency that when the agency receives form JV-535 requesting prompt appointment of a surrogate parent, the agency must make reasonable efforts to identify and appoint a surrogate parent within 30 calendar days of service of the referral.
(A) Whenever the local educational agency appoints a surrogate parent for a dependent or ward under Government Code section 7579.5(a)(1), it must notify the court on form JV-536 within five court days of the appointment and, at the same time, must send copies of the notice to the child's attorney and to the social worker or probation officer identified on the form.
(B) If the local educational agency does not appoint a surrogate parent within 30 days of receipt of a judicial request, it must notify the court within the next five court days on form JV-536 of the following:
(i) Its inability to identify and appoint a surrogate parent; and
(ii) Its continuing reasonable efforts to identify and appoint a surrogate parent.
(4) Whenever a surrogate parent resigns or the local educational agency terminates the appointment of a surrogate parent, replaces a surrogate parent, or appoints another surrogate parent, it must notify the court, the child's attorney, and the social worker or probation officer on form JV-536 within five court days of the resignation, termination, replacement, or appointment. The child's attorney, the social worker, or the probation officer may request a hearing for appointment of a new educational rights holder by filing Request for Hearing Regarding Child's Access to Services (form JV-539) and must provide notice of the hearing as provided in (g)(2). The court may, on its own motion, direct the clerk to set a hearing.
(Subd (d) amended effective January 1, 2014; adopted as subd (b); previously amended and relettered effective January 1, 2004; previously amended effective January 1, 2007, and January 1, 2008.)
(e) Transfer of parent's or guardian's educational or developmental-services decisionmaking rights to educational rights holder
When the court appoints an educational rights holder after limiting a parent's or guardian's educational or developmental-services decisionmaking rights, those parental decisionmaking rights-including the right to notice of educational or developmental-services meetings and activities, to participation in educational or developmental-services meetings and activities, and to decisionmaking authority regarding the child's education or developmental services, including the authority under sections 4512 and 4701.6, Education Code section 56028, 20 United States Code sections 1232g and 1401(23), and 34 Code of Federal Regulations section 300.30-are transferred to the educational rights holder unless the court specifies otherwise in its order.
(1) When returning a child to a parent or guardian, the court must consider the child's educational and developmental-services needs. The parent's or guardian's educational and developmental-services decisionmaking rights are reinstated when the court returns custody to the parent or guardian unless the court finds specifically that continued limitation of parental decisionmaking rights is necessary to protect the child.
(2) If the court appoints a guardian for the child under rule 5.735 or 5.815, all of the parent's or previous guardian's educational and developmental-services decisionmaking rights transfer to the newly appointed guardian unless the court determines that limitation of the new guardian's decisionmaking rights is necessary to protect the child.
(Subd (e) amended effective January 1, 2014; adopted effective January 1, 2004; previously amended effective January 1, 2007, and January 1, 2008.)
(f) Authority and responsibilities (§§ 317, 319, 360, 361, 635, 706.5, 726, 4514, 4646-4648, 4700-4731, 5328; Ed. Code, §§ 56055, 56340, 56345; Gov. Code, §§ 7579.5, 95014-95020; 34 C.F.R. § 300.519)
(1) The educational rights holder acts as and holds the rights of the parent or guardian with respect to all decisions regarding the child's education and developmental services, and is entitled:
(A) To access records and to authorize the disclosure of information to the same extent as a parent or guardian under the Family Educational Rights and Privacy Act (FERPA), 20 United States Code section 1232g;
(B) To be given notice of and participate in all meetings or proceedings relating to school discipline;
(C) To advocate for the interests of a child or youth with exceptional needs in matters relating to:
(i) The identification and assessment of those needs;
(ii) Instructional or service planning and program development-including the development of an individualized family service plan, an individualized educational program, an individual program plan, or the provision of other services and supports, as applicable;
(iii) Placement in the least restrictive program appropriate to the child's or youth's educational or developmental needs;
(iv) The review or revision of the individualized family service plan, the individualized education program, or the individual program plan; and
(v) The provision of a free, appropriate public education.
(D) To attend and participate in the child's or youth's individualized family service plan, individualized education program, individual program plan, and other educational or service planning meetings; to consult with persons involved in the provision of the child's or youth's education or developmental services; and to sign any written consent to educational or developmental services and plans; and
(E) Notwithstanding any other provision of law, to consent to the child's or youth's individualized family service plan, individualized education program, or individual program plan, including any related nonemergency medical services, mental health treatment services, and occupational or physical therapy services provided under sections 7570-7587 of the Government Code.
(2) The educational rights holder is responsible for investigating the child's or youth's educational and developmental-services needs, determining whether those needs are being met, and acting on behalf of the child or youth in all matters relating to the provision of educational or developmental services, as applicable, to ensure:
(A) The stability of the child's or youth's school placement. At any hearing following a change of educational placement, the educational rights holder must submit a statement to the court indicating whether the proposed change of placement is in the child's or youth's best interest and whether any efforts have been made to keep the pupil in the school of origin;
(B) Placement in the least restrictive educational program appropriate to the child's or youth's individual needs;
(C) The child's or youth's access to academic resources, services, and extracurricular and enrichment activities;
(D) The child's or youth's access to any educational and developmental services and supports needed to meet state standards for academic achievement and functional performance or, with respect to developmental services, to promote community integration, an independent, productive, and normal life, and a stable and healthy environment;
(E) The prompt and appropriate resolution of school disciplinary matters;
(F) The provision of any other elements of a free, appropriate public education; and
(G) The provision of any appropriate early intervention or developmental services required by law, including the California Early Intervention Services Act or the Lanterman Developmental Disabilities Services Act.
(3) The educational rights holder is also responsible for:
(A) Meeting with the child or youth at least once and as often as necessary to make educational or developmental-services decisions that are in the best interest of the child or youth;
(B) Being culturally sensitive to the child or youth;
(C) Complying with all federal and state confidentiality laws, including, but not limited to, sections 362.5, 827, 4514, and 5328, as well as Government Code section 7579.5(f);
(D) Participating in, and making decisions regarding, all matters affecting the child's or youth's educational or developmental-services needs-including, as applicable, the individualized family service planning process, the individualized education program planning process, the individual program planning process, the fair hearing process (including mediation and any other informal dispute resolution meetings), and as otherwise specified in the court order-in a manner consistent with the child's or youth's best interest; and
(E) Maintaining knowledge and skills that ensure adequate representation of the child's or youth's needs and interests with respect to education and developmental services.
(4) Before each statutory review hearing, the educational rights holder must do one or more of the following:
(A) Provide information and recommendations concerning the child's or youth's educational or developmental-services needs to the assigned social worker or probation officer;
(B) Make written recommendations to the court concerning the child's or youth's educational or developmental-services needs;
(C) Attend the review hearing and participate in any part of the hearing that concerns the child's or youth's education or developmental services.
(5) The educational rights holder may provide the contact information for the child's or youth's attorney to the local educational agency.
(Subd (f) amended effective January 1, 2014; adopted effective January 1, 2008.)
(g) Term of service; resignation (§§ 319, 361, 726; Gov. Code § 7579.5)
(1) An appointed educational rights holder must make educational or developmental-services decisions for the child or youth until:
(A) The dismissal of the petition or the conclusion of the dispositional hearing, if the rights holder is appointed under section 319(g);
(B) The rights of the parent or guardian to make educational or developmental-services decisions for the child are fully restored;
(C) The dependent or ward reaches 18 years of age, unless he or she chooses not to make his or her own educational or developmental-services decisions or is deemed incompetent by the court, in which case the court may, if it also finds that continuation would be in the best interests of the youth, continue the appointment until the youth reaches 21 years of age or the court's jurisdiction is terminated;
(D) The court appoints another responsible adult as educational rights holder for the child or youth under this rule;
(E) The court appoints a successor guardian or conservator; or
(F) The court designates an identified foster parent, relative caregiver, or nonrelative extended family member to make educational or developmental-services decisions because:
(i) Reunification services have been terminated and the child is placed in a planned permanent living arrangement with the identified caregiver under section 366.21(g)(5), 366.22, 366.26, 366.3(i), 727.3(b)(5), or 727.3(b)(6); and
(ii) The foster parent, relative caregiver, or nonrelative extended family member is not otherwise excluded from making education or developmental-services decisions by the court, by section 361 or 726, or by 34 Code of Federal Regulations section 300.519 or 303.422.
(2) If an appointed educational rights holder resigns his or her appointment, he or she must give notice to the court and to the child's attorney and may use Educational Rights Holder Statement (form JV-537) to provide this notice. Once notice is received, the child's or youth's attorney, or the social worker or probation officer may request a hearing for appointment of a new educational rights holder by filing form JV-539.
The attorney for the party requesting the hearing must provide notice of the hearing to:
(A) The parents or guardians, unless otherwise indicated on the most recent form JV-535, parental rights have been terminated, or the child has reached 18 years of age;
(B) Each attorney of record;
(C) The social worker or probation officer;
(D) The CASA volunteer; and
(E) All other persons or entities entitled to notice under section 293.
The hearing must be set within 14 days of receipt of the request for hearing. The court may, on its own motion, direct the clerk to set a hearing.
(Subd (g) amended effective January 1, 2014; adopted effective January 1, 2008.)
(h) Service of order
§
Whenever the order identifies or appoints a new or different educational rights holder or includes any other changes, the clerk will provide a copy of the completed and signed form JV-535, form JV-535(A) if attached, and any received form JV-536 or JV-537 to:
(1) The child, if 10 years of age or older, or youth;
(2) The attorney for the child or youth;
(3) The social worker or probation officer;
(4) The Indian child's tribe, if applicable, as defined in rule 5.502;
(5) The local foster youth educational liaison, as defined in Education Code section 48853.5;
(6) The county office of education foster youth services coordinator;
(7) The regional center service coordinator, if applicable; and
(8) The educational rights holder.
The completed and signed form must be provided no later than five court days from the date the order is signed. The clerk must also ensure that any immediately preceding educational rights holder, surrogate parent, or authorized representative, if any, is notified that the previous court order has been vacated and their appointment terminated.
The clerk will make copies of the form available to the parents or guardians, unless otherwise indicated on the form, parental rights have been terminated, or the child has reached 18 years of age and reunification services have been terminated; to the CASA volunteer; and, if requested, to all other persons or entities entitled to notice under section 293.
(Subd (h) amended effective January 1, 2014; adopted effective January 1, 2008.)
(i) Education and training of educational rights holder
If the educational rights holder, including a parent or guardian, asks for assistance in obtaining education and training in the laws incorporated in rule 5.651(a), the court must direct the clerk, social worker, or probation officer to inform the educational rights holder of all available resources, including resources available through the California Department of Education, the California Department of Developmental Services, the local educational agency, and the local regional center.
(Subd (i) amended effective January 1, 2015; adopted effective January 1, 2008; previously amended effective January 1, 2014.)
(j) Notice of and participation in hearings
(1) The educational rights holder must receive notice of all regularly scheduled juvenile court hearings and other judicial hearings that might affect the child's or youth's education and developmental services, including joint assessment hearings under rule 5.512 and joinder proceedings under rule 5.575.
(2) The educational rights holder may use form JV-537 to explain any educational or developmental-services needs to the court. The court must permit the educational rights holder to attend and participate in those portions of a court hearing, nonjudicial hearing, or mediation that concern education or developmental services.
(Subd (j) amended effective January 1, 2014; adopted effective January 1, 2008.)
Rule 5.650 amended effective January 1, 2015; adopted as rule 1499 effective July 1, 2002; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2004, January 1, 2008, and January 1, 2014.
Advisory Committee Comment
Under the Individuals With Disabilities Education Act (IDEA), the court may appoint a surrogate parent to speak and act on behalf of a pupil in all matters relating to the identification, evaluation, and educational placement of the child and to the provision of the child's free, appropriate public education. (20 U.S.C. § 1415(b)(2); 34 C.F.R. § 300.519.) Under Welfare and Institutions Code sections 361 and 726, the court must appoint a responsible adult as an educational representative or rights holder to make decisions regarding the child's educational or developmental-services needs when the parent's rights to make those decisions have been limited. A court-appointed educational rights holder is responsible for protecting the child's rights and interests with respect to educational or developmental services, including any special education and related services.
If the court limits the parent's decisionmaking rights and cannot identify a responsible adult to appoint as educational rights holder, and the appointment of a surrogate parent is not warranted, sections 361 and 726 authorize the court to make educational or developmental-services decisions for the child with the input of interested persons. If, however, the court cannot identify a responsible adult to appoint as educational rights holder and there is reason to believe that the child needs special education and related services, the court must refer the child to the local educational agency (LEA) for the appointment of a surrogate parent. Sections 361 and 726 do not authorize the court to make educational decisions for a child in these circumstances. The surrogate parent appointed by the LEA acts as a parent for the purpose of making decisions with respect to special education and related services and the provision of a free, appropriate public education on behalf of the child. (Gov. Code, § 7579.5(c); Ed. Code, § 56028; 34 C.F.R. § 300.30(b)(2); see 20 U.S.C. §§ 1401(9), 1414(d).) If, however, the LEA does not appoint a surrogate parent in a timely manner, the court has the authority to join the LEA in the dependency proceedings under section 362 and rule 5.575. In the period between the setting of the joinder hearing and the appointment of a surrogate parent by the LEA, the court may make educational decisions for the child under the general authority granted by section 362(a). The appointment of a surrogate parent notwithstanding, the court holds the authority under sections 361 and 726 to make developmental-services decisions if it cannot identify a responsible adult to do so.