A. Dependency or Neglect Proceedings



The question of whether special education law and principles are relevant for a particular child should be considered at various points in the course of dependency or neglect proceedings, particularly in determining the child’s needs, forming the treatment plan, and obtaining services for the child. Although the following discussion is framed primarily in terms of foster care, the same legal and social principles apply to the entire course of child welfare proceedings.
























Telephone interview with Keith Kirchubel, Principal Consultant, Dispute Resolution, Colorado Department of Education in Denver Colorado (March 2008).
1. Identifying Educational Decision maker/Parent

A child’s educational needs should be considered from the beginning of dependency or neglect proceedings. Whether or not the child has a  disability, it is important that someone considering the child’s best interests make educational decisions. Because so many of the rights and procedures under IDEA involve the parent, identifying a parent or educational surrogate parent (ESP) is even more crucial when the child has a disability under IDEA. 

Typically, a parent’s educational decision-making rights are terminated only at the final termination of parental rights. If parents are willing to make educational decisions in the child’s best interests, or can be educated and supported to do so as part of a treatment plan, no other action is required. However, if reasonable parental cooperation with a treatment plan is unlikely, or is in fact not happening, a court could consider terminating educational decision-making rights, which would allow a foster parent or other caregiver to serve as parent or allow an ESP to be appointed.

A clear appointment of educational decision making rights by the court would assist the school districts in meeting the child’s needs.





















Schools cannot provide services under IDEA without both parental consent for evaluation (though the school district may be able to override lack of parental consent for evaluation with a due process request, in the unlikely event it is willing to invest the energy and money to do so).

2.  Treatment Plan and Special Education

  • In creating a treatment plan, the court can consider ordering one or more of the following:
  • regular educational updates;
  • referral for a special education evaluation under Part B or Part C;
  • parents’ agreement to allow at least a special education evaluation (or the court can limit parents’ educational decision-making rights);
  • a copy of the IEP produced for the court;  and
  • parents’ attendance at IEP meetings.  If a parent is incarcerated, a conference call is still a possibility.


State Bd. of Educ. Rule 9.02(1)(a),
1 Code Colo. Regs. 301-8 (2009).
3.  Initial Placement in Foster Care

For non-emergency placement, the court or public agency is mandated to work cooperatively with both the child’s current school and the prospective school to ensure that appropriate special education services are available for the child. 


Rule 9.02(1)(b).
Emergency placement for the safety of the child may be done without this coordination.  

Rule 9.02(2).
However, “[i]n no event shall a child be placed in an eligible facility or an administrative unit that is unable to ensure the provision of special education services that are appropriate for the child.”