Education Rights &

 Education Rights Holders

A foster child, as defined by EC § 48853.5(a), is afforded rights to ensure they have access to the same academic resources, services, and extracurricular and enrichment activities that are available to all students. All educational and school placement decisions are made by the Educational Rights Holder in consultation with other parties and must be based on the child’s best interests and consider, among other factors, educational stability and the least restrictive educational setting necessary to achieve academic progress. 

See EC 48850(a)(1), 48853(h); WIC 361(a)(5), 726(c)(2).

If the LEA cannot identify or contact the biological parent of the foster youth who would hold the student’s educational rights, can the LEA appoint someone else to be the educational rights holder? 

The answer to this question requires us to first understand that in California the only authority for limiting a parent’s educational rights and assigning those rights to another individual is through an order of the Juvenile Court judge. There are limited exceptions, however, when a person can hold educational rights on behalf of a foster student without possessing a court order assigning such rights. Those would be in instances when a court has limited the rights of a foster child’s parent or guardian to make educational decisions on behalf of the foster child. In such a case, the foster parent or caregiver may exercise educational rights on behalf of the foster child pursuant to EC § 56055. In addition, for a foster student that is eligible for special education and related services, an LEA may have a surrogate parent assigned to be a member of the foster student’s IEP team or to otherwise make educational decisions for the foster student according to the requirements of California Government Code § 7579.5. 

The Juvenile Court is required to provide the LEA of attendance a JV-535 each time a child’s education rights holder changes. Furthermore, if the court cannot identify an education rights holder and needs the LEA to assign a parent surrogate a JV-535 will be sent with an attached JV-536 requesting the LEA respond to the court with the assigned education surrogate. 

Please see the following Rules of Court from the California Judicial Council 

Rule 5.650. Appointed educational rights holder 

(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 decision making rights under Education Code § 56055 and developmental-services decision making rights under § 361 or 726, and is not prohibited from exercising those rights by § 361, 726, or 4701.6(b), or by 34 Code of Federal Regulations § 300.519 or 303.422; or 

(2) The court cannot identify a responsible adult to serve as the child's educational rights holder under § 319, 361, or 726 or under Education Code § 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 § 361 or 726, Government Code § 7579.5, and title 20 United States Code § 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.

Approved March 2020

What if the Education Rights Holder (ERH) is unreachable or MIA?

The assigned social worker or minor's attorney notifies the court as soon as possible and a request for a new ERH to be appointed should be submitted to the court.

Approved November 2022

Can the district FY liaison temporarily hold education rights for a foster youth? 

For youth in foster care, a JV-535 and associated Rules of Court allow for the judge to make these decisions in urgent circumstances when no ERH can be identified. See 5b on the sample JV-535 form.

Approved November 2022

Schools often ask for proof of Educational Rights Holder, even if the biological parents have Education Rights by default. What should I do?

Training can be provided to all LEAs regarding the process for Education Rights to be limited by the court when appropriate, the JV-535 process and the likelihood that biological parents will continue to be the ERH for students in foster care. Furthermore, all LEAs should have a process for monitoring incoming JV-535 and JV-536 forms. The information provided and/or requested should be shared with appropriate site and district staff quickly, and information systems updated as appropriate. See sample forms and additional information on the Education Rights page.

Approved November 2022

Can an LEA appoint an educational representative designee when the parent retains educational rights and can sign an IEP? 

No. The only authority for limiting a parent’s educational rights and assigning those rights to another individual is the Juvenile Court judge and the only instance when an LEA can appoint a surrogate parent is if the foster student’s parents have had their educational rights limited and the student has been identified for special educational and related services. If the foster student has a parent who retains educational rights, the LEA would not be permitted to appoint a surrogate parent or other designee to represent the educational rights of the child. 

Approved March 2020

Can the foster parent have access to the educational records of a student in foster care if they do not hold educational rights?

Yes. A foster parent can have access to records necessary for them to support the education of children in their care regardless of whether or not they hold educational rights. 

Please refer to the following California Education Code: 

§ 49069.3. 

(a) A foster family agency with jurisdiction over a currently enrolled or former pupil, a short-term residential treatment program staff responsible for the education or case management of a pupil, and a caregiver who has direct responsibility for the care of the pupil, including a certified or licensed foster parent, an approved relative or nonrelated extended family member, or a resource family, as defined in § 1517 of the Health and Safety Code and § 16519.5 of the Welfare and Institutions Code, may access the current or most recent records of grades, transcripts, attendance, discipline, and online communication on platforms established by schools for pupils and parents, and any individualized education programs (IEP) that may have been developed pursuant to Chapter 4 (commencing with § 56300) of Part 30 or any plan adopted pursuant to § 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794(a)) maintained by school districts, county offices of education, charter schools, nonpublic schools, as defined in § 60010, or private schools of that pupil. A caregiver, pursuant to this §, may access the information specified in this § regardless of whether the caregiver has been appointed as the pupil’s educational rights holder pursuant to § 319, 361, or 726 of the Welfare and Institutions Code. 

(b) A foster family agency, short-term residential treatment program, or caregiver may review and receive pupil records pursuant to subdivision (a) for purposes of monitoring the pupil’s educational progress, updating and maintaining the pupil’s education records as required by § 16010 of the Welfare and Institutions Code, and ensuring the pupil has access to educational services, supports, and activities. These purposes include, but are not limited to, enrolling the pupil in school, assisting the pupil with homework, class assignments, and college and scholarship applications, and enrolling the pupil in extracurricular activities, tutoring, and other afterschool and summer enrichment programs. 

Approved March 2020

What records can an LEA release to the Court Appointed Special Advocate (CASA) who does not hold educational rights? 

Generally, Court Appointed Special Advocates (CASAs) are entitled to receive and review all educational records related to their case child because most CASAs have in place a court order which allows access to records concerning their case child, including educational records. An LEA should ask to review this court order when any person claiming to be a child’s CASA seeks access to a child’s educational records. 

Approved March 2020

Can the foster parent be the education rights holder (ERH)? 

Yes. Pursuant to California Rule of Court § 5.650(c), individuals who are paid to care for the welfare of a child may not be awarded educational rights of that child as it is considered to be a conflict of interest (e.g. group home staff, child welfare staff, probation department staff, or the child’s attorney). However, foster parents are deemed not have such a conflict of interest. This is because foster parents are not considered to be “paid” for caring for the child but receive reimbursement for room, board and other needs of the child.

W & I § 319

(j) (1) At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:

(2) If the court limits the parent’s educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the child’s educational representative before appointing an educational representative or surrogate who is not known to the child.

Approved March 2020

What do shared educational rights look like? Is that legal?

It is allowable and legal for more than one person to hold and share Educational Rights for a student in foster care. It is a best practice to continue to have a biological parent hold Educational Rights even if they need the support of another individual to learn how to support their child’s education. This may be a CASA or other stakeholder. This does require open communication and collaboration.

Approved November 2022

Should judges review the Educational Rights Holder at every hearing?

California Rule of Court 5.649 states that the court must identify the Educational Rights Holder for the child at each hearing in a juvenile dependency or juvenile justice proceeding. At any hearing, where the court limits, restores, or modifies Educational Rights, or where there are updates to any contact or other information, in any juvenile proceeding, the findings and orders must be documented on form JV-535. Unless the rights of the parent, guardian, or Indian custodian have been limited by the court under this rule, the parent, guardian, or Indian custodian holds the educational and developmental-services decision making rights for the child. In addition, a nonminor or nonminor dependent youth holds the rights to make educational and developmental-services decisions for the youth and should be identified on form JV-535, unless rule 5.650(b) applies.

At the dispositional hearing and each subsequent review or permanency hearing, the court must determine whether the rights of a parent, guardian, or Indian custodian to make educational or developmental-services decisions for the child should be limited.

See the California Rules of Court JV-535 Info Sheet.

Approved November 2022

Can an LEA release any educational records to the social worker or probation officer of a student in foster care without a signed release from the ERH? Does this include IEPs? 

On January 14, 2013, President Obama signed into law the Uninterrupted Scholars Act (USA), Public Law 112-278, which amended the Family Educational Rights and Privacy Act (FERPA). 20 U.S.C. § 1232g. These amendments permit educational agencies and institutions to disclose personally identifiable information (PII) from the education records of students in foster care placement, without parental consent, to an agency caseworker or other representative of a State or local child welfare agency (CWA) or tribal organization authorized to access a student’s case plan “when such agency or organization is legally responsible, in accordance with State or tribal law, for the care and protection of the student.” See 20 U.S.C. § 1232g(b)(1)(L). The USA also amended FERPA to allow educational agencies and institutions to disclose a student’s education records pursuant to a judicial order issued in specified types of judicial proceedings in which the parent is already a party, without requiring additional notice to the parent by the educational agency or institution. In response, EC § 49076 was amended to reflect this federal change. Please see the link below.

Approved March 2020

Does a foster youth have to be given an Education Rights Holder (ERH) via a JV-535?

The court can only appoint an ERH when they have limited the parent’s educational rights. This is done through a legal process and utilizes the JV-535 to both limit a parent’s rights and appoint someone to make developmental and educational decisions for the child. The biological parents continue to hold Educational Rights unless limited by the court via the JV-535. If the biological parent’s rights are limited and the child is placed in a long-term foster home, the foster parent can become the de facto ERH.

Approved November 2022