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New laws impact educators regarding students in
foster care – How can attorneys help?
'Teachers may find themselves at a moral crossroads as never
before, based on some new Federal legislation... '
By Elisa Reiter and Daniel Pollack | August 9, 2021
What You Need to Know
• There are almost 30,000 Texas children in foster care, many of
whom attend school.
• Many of these children will need an Individual Education
Program (IEP), a plan tailored to meet the needs of students
with physical or learning disabilities.
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• These specially tailored supports will aid every individual child
make the maximum progress they can.
Educators, families, and attorneys working together can help
ensure that the education environment for a child in foster
care is welcoming, safe, and productive. There are
almost 30,000 Texas children in foster care, many of whom
attend school. Many of these children will need
an Individual Education Program (IEP), a plan tailored to
meet the needs of students with physical or learning
disabilities. These specially tailored supports will aid every
individual child make the maximum progress they can.
Because of numerous confidentiality and privacy issues and
other legal requirements, the involvement of an attorney —
whether that attorney represents the school or the child —
may be necessary to guarantee access to these services.
Teachers may find themselves at a moral crossroads as
never before, based on some new Texas and Federal
legislation.
New legislation for teachers and administrators to be
cognizant of:
1. Changes to the Texas Education Code were embodied in House Bill 3979.
Social studies classes are to address a list of founding documents that
Texas social studies students must be taught, including the U.S.
Constitution, the Federalist papers, and some of the writings of Alexis de
Tocqueville, yet:
1. No teacher can be compelled by a policy of a state agency, school
district, open enrollment charter school or by school administration
to “discuss current events or widely debated and currently
controversial issues of public policy or social affairs”.
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2. If teachers discuss current events, teachers are mandated by the
new law to explore such issues from diverse perspectives.
3. Students will be prohibited from getting credit or extra credit due to
participating in demonstrations that include political activism, or
lobbying elected officials on a particular issue. Will this hold up to
First Amendment scrutiny?
2. Changes to Texas Family Code Chapter 107 mean that attorneys are
perennial students: attorneys must familiarize themselves with a
minimum of three hours of study related to trauma, and the impact of
trauma on children in the foster care system. Texas Family Code Chapter
107.004(b-1)(2)-(b-4) has been added to mandate that attorneys who seek
to be on a judge’s list for potential court appointments as an ad litem in a
child protection proceeding must complete a minimum of three hours of
training in trauma dealing with:
(1) the symptoms of trauma and the impact that trauma has
on a child, including how trauma may affect a child’s
development, emotions, memories, behavior, and decision-
making;
(2) attachment and how a lack of attachment may affect a
child;
(3) the role that trauma-informed care and services can
have in a child’s ability to build connections, feel safe, and
regulate the child’s emotions to help the child build
resilience and overcome the effects of trauma and adverse
childhood experiences;
(4) the importance of screening children for trauma and the
risk of mislabeling; and inappropriate treatment of children
without proper screening, including the risks and benefits
associated with the use of psychotropic medication;
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(5) the potential for re-traumatization of children in the
conservatorship of the Department of Family and Protective
Services; and
(6) the availability of:
(A) research-supported, trauma-informed, non-
pharmacological interventions; and
(B) conservatorship of the Department of Family and
Protective Services, to: (i) trauma-informed care; and
(ii) trauma-informed mental and behavioral health services.
By September 1, 2022, attorneys seeking appointments as ad
litems on judge’s approved lists must provide the court with
a certificate of completion as proof of three hours of trauma
based continuing legal education classes. These courses can
change the dynamic between attorneys and the foster
children attorneys represent in court. How? Trauma based
education is critical for teachers and for attorneys; such
education makes us more sensitive to the child’s experience
prior to removal and thereafter, as the child processes
inevitable changes imposed by removal, by the foster care
dynamic, and beyond.
Teachers may find themselves facing more controversy and
claims of attempting to indoctrinate students in ways that
are acceptable to some parents, but not to all parents. What
to do? Reach out to an attorney. How?
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Building a relationship with your attorney
As the pandemic slowly recedes, and new legislation
becomes law, build a good relationship with an attorney,
with these tips in mind:
• Meet each other live. Building a personal relationship allows the attorney
to really get to know the child and the important people in their life.
Importantly, make the most of these meetings. Introductory small talk is
nice, but use the time wisely to tackle critical issues.
• Follow up and memorialize meetings. Stay in touch with phone calls and
emails to make sure that all of the “i’s are dotted and the t’s are crossed.”
One missed signature or document that wasn’t submitted can affect the
foster child’s entire school year.
• Have high expectations of the attorney. The attorney-client relationship is
governed by rules of professional responsibility. The attorney’s most
important duties are to represent their client competently and to advocate
diligently for their client.
Training and increased understanding is not limited to
attorneys representing children in child protection cases.
Cross-collaboration is essential to meet the physical and
emotional needs of children who have been removed from
their homes due to allegations of abuse or neglect. The
Texas Education Agency (TEA) and Children’s Commission,
in Foster Care & Student Success: Texas Systems Working
Together to Transform Education Outcomes of Students in
Foster Care state:
The federal Fostering Connections to Success and Increasing
Adoptions Act of 2008 directs local and state child welfare
systems to coordinate with education
providers. Collaboration between the child welfare and
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education system and education systems is recognized as an
important component of improving the educational
outcomes of students who experience foster care. A
challenging task, it may force systems and individuals within
those systems to work in new and unfamiliar ways.
Recommendations include:
• Maintaining continuity for children in the foster program by keeping them
in the same school when possible.
• Assuring that:
1. If there is to be a transfer between schools, easing transfer and transition
between schools.
2. Children in foster care receive such extra services and interventions as
needed to keep them ready to learn.
3. Children in care have the opportunity to experience extracurricular
activities that are developmentally appropriate to embrace the full
educational experience.
4. Children in care have access to resources to prevent truancy, the need for
discipline, and dropout, and instead readily participate in the educational
process.
5. Children can self-advocate in their educational experience.
6. Children have the assistance they need to matriculate and complete a
college education.
How to achieve these lofty goals? Communication is key.
Meeting with stakeholders is essential. Who are
stakeholders? Principals, attorneys, guardians ad litem,
TDPFS social workers, special education teachers, home
room teachers, and the players who comprise an Admission,
Review, and Dismissal Process (ARD). The purpose of
communication is to assure that teachers and attorneys
share awareness, so that they can collaborate to serve the
best interest of children or youth in foster care. Cross
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training to assure collaboration includes: “Foster Care/CPS
101, Culture of Foster Care/Sensitivity, Impact of Trauma,
DFPS Transition Supports, Foster Care Youth-specific Post-
secondary opportunities, Mandatory Child Abuse Reporting
and others.” Child welfare partners must be trained to
understand how to enroll and withdraw children from
school, to gather and process data from the schools the
children in their care attend, to assist with graduation
planning and foster parent training. Social workers must
familiarize themselves with special education laws, the
importance of teaching children financial planning, how to
continue to keep parents and children for whom they are
responsible, apprised, informed, and involved, McKinney-
Vento supports for homeless students, and other available
services. CASA advocates can be key players in this process
as well.
We are never too old to learn to help one another. Mr.
Bumble in Oliver Twist may not listen as we would have
liked when Oliver pleads, “Please sir, I want some more.” We
must listen. We must communicate. We are never too jaded
nor experienced to learn how to better serve and how to get
more for children and youth.
Elisa Reiter is an attorney, Board Certified in Family Law and in
Child Welfare Law by the Texas Board of Legal Specialization, at
Underwood Perkins, P.C. Contact: ereiter@uplawtx.com. Daniel
Pollack is an attorney and professor at Yeshiva University’s School of
Social Work in New York City. Contact: dpollack@yu.edu.