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Q1. What is AB 490?
Assembly Bill 490 (AB 490) refers to California legislation addressing many of the barriers to educational success experienced by foster youth. AB 490 was passed in 2003 and became effective January 1, 2004. The law gives increased responsibility to school districts, county social service agencies, and other child welfare professionals to monitor and support the education of foster youth. AB 490 added some new provisions to the law as well as amended existing laws, mostly in the California Education Code.
Q2. What does AB 490 require?
AB 490 creates or amends the following provisions of law:
Q3. Which youth does AB 490 cover?
The legislative intent of AB 490 was "to ensure that pupils in foster care... have a meaningful opportunity to meet the academic achievement standards to which all pupils are held, are placed in the least-restrictive educational programs, and have access to the academic resources, services, and extra-curricular and enrichment activities as all other pupils."
The population of youth the Legislature had in mind when it passed AB 490 is described in EC § 48853.5(d) as "any foster child who has been removed from his or her home pursuant to Section 309 of the Welfare and Institutions Code (WIC), is the subject of a petition filed under Section 300 or 602 of the WIC, or has been removed from his or her home and is the subject of a petition filed under Section 300 or 601 of the WIC." Other sections of the Education Code affected by AB 490 refer to "pupils in foster care" or use other words to describe the same group.
EC § 46069.5.
Q4. When a child leaves foster care and returns home to live with her biological parents, must the school district allow her to immediately enroll? If she wants to stay in her school of origin, can she? And is the foster youth liaison required to work with such youth?
As explained above, § 48853.5 applies to
any child who is the subject of a petition under WIC 300 or
602. As a practical matter, any child who is a dependent or ward would rarely ever be sent back home without the court retaining jurisdiction for some period (for family maintenance, an extended home visit, or as part of the child welfare or juvenile justice systems). Thus, the child is likely to still be a dependent or ward and the "subject of a petition." Even if the court did dismiss jurisdiction, there could still be an argument that the child is the subject of a petition (unless the child is sent home because the petition is specifically dismissed under WIC 390 or 782).
Q5. Does AB 490 apply to voluntary placements?
While many provisions of AB 490 do not directly apply to voluntary placements, the spirit of AB 490 is to increase the academic achievement of children in out-of-home care. The partial credit provision of the law in particular applies to
all students in California. Thus, a child in a voluntary placement would clearly be entitled to receive partial credit for work satisfactorily completed at another public school, at a juvenile court school or non-public, non-sectarian school.
EC § 48645.5.
Q6. Does AB 490 apply to informal placements with relatives, when there is no juvenile court involvement?
Again, while AB 490 does not directly apply to children who live in informal placements, the spirit of AB490 is to increase the academic achievement of children in out-of-home care. However, as noted above, children in informal placements are still covered by the provisions of the law that apply to all students. For example, they must receive partial credits for work completed at another school.
Q7. Does AB 490 apply to a child age 5.5 years who is enrolling in Kindergarten, even though compulsory education does not begin until age 6 in California?
Education Code § 48853 (a) provides that a foster child "shall attend programs operated by the local education agency, unless" one of the exceptions applies. Furthermore, EC § 48000 states that a child
shall be admitted to kindergarten at the beginning of a school year, or at any later time in the same year if the child will have a fifth birthday on or before December 2 of that school year. This means that foster children have the right to attend the local kindergarten program if the person who holds educational rights and/or placing agency decides to enroll the child.
Education Code § 48853.5 requires the school district to "allow the foster child to continue his or her education in the school of origin for the duration of the academic year" when the child's placement changes. This should allow a child to remain in the same kindergarten program.
Q8. What is the remedy if districts or schools don’t comply with the provisions of AB 490?
If a district or school fails or refuses to comply with the provisions of AB 490, advocates should begin by immediately notifying the child’s attorney. They can also attempt to resolve the issue informally by contacting the district’s liaison for foster children. If the district liaison is unresponsive, advocates should then contact the liaison at the county office of education. The county office should be able to help them work with the district. If the county is unable to get the district to comply, they will contact the California Department of Education.
If the matter cannot be resolved informally within a few days and the school district fails or refuses to comply with the provisions of AB 490, the child’s attorney can ask the juvenile court to join the school district to court proceedings pursuant to Welfare and Institutions Code §362 and 727(a) (i.e. file a Joinder Motion asking the court to order the school district to appear and explain why they failed to provide the child with the services he is entitled to pursuant to AB 490).
Q9. If a foster youth has the right to stay in her school of origin if it is in her "best interest," how is best interest determined?
Education Code § 48853.5 states that three people are involved in determining whether or not it is in a child’s best interest to remain in her school of origin. Those three people are the school district foster youth liaison, the person who holds education rights for the child, and the child.
If the liaison wishes to recommend that it is not in the child’s best interest to remain in her school of origin, the liaison must provide the person with education rights with a written explanation.
EC § 48853.5 (d)(3).
Q10. If the decision makers (e.g. educational liaison, person with education rights, child) disagree over whether it is in the child's best interest to remain in school of origin, how is the dispute resolved?
If a dispute arises, the child has the right to remain in her school of origin until the dispute is resolved. No specific dispute resolution process is described in the Education Code, but districts might rely on their existing dispute resolution procedures (for example, dispute resolution procedures described by the federal McKinney-Vento law).
Ultimately, the child remains in the school of origin if the child and/or person with education rights decide it is in the child’s best interests. The foster care liaison’s role is "advisory" and does not supersede the authority of the parent or person with educational rights.
EC §48853.5 (c).