Jay, Foster Child

"The schools are stuck, and it’s Arizona’s abused and neglected children who suffer."

Jay is 5 and intellectually disabled. He is entering kindergarten, but developmentally, is years behind his typical peers.

His new school has a plethora of resources for Jay, including a smaller classroom with a trained special education teacher and individualized academic programs for Jay’s unique needs, but the school is unable to put Jay into this program.

Instead, Jay spends his days in a general education kindergarten class, unable to participate, unable to progress, unable to access the curriculum.


Because Jay is one of Arizona’s 15,000 foster children.

For the past few years, I have volunteered as a special education lawyer for children in state care. These children have been abused by their parents or caregivers and removed from their homes, but usually, the parents retain education rights.  

The U.S. Supreme Court has held that a parent has the right to control their child’s education. Federal special education law requires parental consent before a student can be evaluated for special education.

In other words, a school can’t give a child special education services without parental approval. For children in foster care, this is often a barrier to an appropriate education.

For students like Jay, the school typically tries to locate the student’s parents. School personnel call, email and send meeting notices to the parents’ last known contact information.

If the parents, often battling their own demons, do not attempt to participate, the schools cannot evaluate these students and are unable to implement the special education programming these children desperately need.

The schools are stuck, and it’s Arizona’s abused and neglected children who suffer.

Children with disabilities are more likely to suffer maltreatment, and therefore more likely to be removed from their homes and placed into foster care. Studies from various states and localities indicate that 30-60 percent of children in state care have developmental delays and 25 percent have three or more chronic health problems.  

One in four foster children suffer from PTSD, and well over half have mental health issues resulting from the trauma of the abuse and the foster system itself.

With Arizona’s opioid use skyrocketing, these statistics will continue to rise. And yet, Arizona schools are forced to ignore federal special education requirements and overlook these children – even though help is just a classroom away.

Arizona HB 2378 solves this problem.

It requires that the Arizona Department of Child Safety promptly provide a foster child’s school with the contact information for a student’s biological parents when those parents retain educational rights.

This protects parental rights and allows schools to implement special education services for the child in the same timeframe services are implemented for other students.

If the parents do not attempt to participate, the foster parent or kinship caregiver can provide the necessary consent. This provision mirrors what schools are legally able to do for children not in state care, complies with federal special education laws and has no effect on the parent’s ability to step in at any time to exercise their parental rights.

HB 2378 is a safeguard for parental rights and a critical step in helping foster children with disabilities. We can make education one crack foster children can’t fall through.


- Rebecca Masterson is Vice President & Chief Counsel of Gen Justice, which serves abused children through its pro bono Children’s Law Clinic. Reach her at rebecca@genjustice.org.

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