A.  “Parent” under IDEA and Accompanying Regulations:

20 U.S.C. § 1401(23) (2008). A “parent” under IDEA means:
  • a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law from serving as a parent);
  • a guardian (but not the State if the child is a ward of the State);
  • an individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally response for the child’s welfare; or
  • except as used in Sections 1415(b)(2) of this title and 1439(a)(5) of this title, an individual assigned under either of those sections to be a surrogate parent.
State Bd. of Educ. Rule 2.33(1),
1 Code Colo. Regs. 301-8 (2007).

A “parent” under the Colorado ECEA Rules means:

  • “A biological or adoptive parent of a child”;
  • “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”;
  • “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);”
  • “An individual acting in the place of a biological or adoptive parent (including a grandparent, step-parent or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or”
  • “An educational surrogate parent who has been assigned. . . .”
Rule 2.33(2)(a).
Despite the possibility of others serving as a parent, the biological or adoptive parent is presumed to be the parent unless that parent does not have legal authority to make educational decisions for the child. 

Rule 2.33(2)(b).
If a court orders a specific person to act as a parent or to make educational decisions on behalf of a child, this person is considered to be the parent for purposes of educational decision making.

34 C.F.R. § 303.19.

Under the federal regulations, the foster parent may act as the parent in the following circumstances:

  • The “natural parent’s authority to make the decisions required of parents under the Act on has been extinguished under State law”; and
  • The foster parent has “an ongoing, long-term parental relationship with the child;”
  • The foster parent is “willing to make the decisions required of parents under the Act; and”
  • The foster parent has “no interest that would conflict with the interests of the child.”
Reference The term “extinguished under state law” applies when parental rights have been terminated.  

Reference
Under these circumstances, “[c]ounty certified foster parents as well as foster parents with private, nonprofit child placement agencies may be able to exercise legal authority over decisions related to special education.”

Interview with Laura Writebol, Colorado Department of Human Services (May 14, 2008).
In a child welfare case, if parental rights have not been terminated, a court may need to consider whether to remove a parent’s educational decision-making authority so that a foster parent or other statutorily authorized person may act as the parent, or so that an educational surrogate parent may be appointed.  This decision may depend on whether the parent will act in the child’s best interests.

Best practice in a child welfare case would be to discuss carefully any possible educational decisions with the parents, such as a referral for an evaluation or attendance at IEP meetings. Sometimes parents who are reluctant to cooperate change their minds when their fears about the process have been alleviated. If appropriate, properly exercising educational decision making rights can be part of the treatment plan. 


However, if this process clarifies that the parent is not likely to act in the child’s best interests, the court might consider removing educational decision making authority from the parent and appointing an ESP.