Kids in Foster Care: Homeless or Not?

The McKinney-Vento Homeless Assistance Act (Subtitle B-Education for Homeless Children and Youth), reauthorized in January 2002, and included as Title X, Part C of the No Child Left Behind Act, ensures educational rights and protections for children and youth experiencing homelessness. Section 725 includes as part of the definition of homeless children and youth those who are awaiting foster care placement. This part of the definition has always been murky for school districts; the purpose of this article is to clear up some of the confusion surrounding the matter of foster care and its relationship to homelessness.

Substitute Care

Substitute Care is the umbrella term used by Children’s Protective Services (CPS) for the care of children outside of their immediate family situation. This can be accomplished through formal or informal processes.

Children and youth who are placed by CPS in formal substitute care through a court order, with conservatorship retained by CPS, are not identified as homeless by the McKinney-Vento definition of “awaiting foster care”. “Foster child” as defined in the Texas Family Code identifies the child as being in the managing conservatorship of CPS and in a foster-care placement (See Texas Family Code, Section 263.001 (4). These formal substitute care placements include:

Foster

1. Foster (Family) Home Placement – The foster home may be a relative home (if they are a licensed/certified foster home), but is usually an unrelated, and most frequently an unconnected family home that has gone through training and been licensed by Child Care Licensing. The placements in this home are court-ordered and CPS retains conservatorship. CPS provides financial and casework services.

2. Foster Group Homes –Foster group homes are licensed by Child Care Licensing. Children/youth are placed by CPS through a court order, while CPS retains conservatorship. CPS provides financial and casework services.

Other

1. Residential Treatment Centers – These residential facilities provide treatment programs to children and youth. They are licensed by Child Care Licensing. Children and youth are placed through a court order and CPS retains conservatorship. CPS provides financial and casework services.

2. Kinship Care – These homes are relative family homes approved by CPS but not licensed or certified as foster homes. Children are placed by a court order, while CPS retains conservatorship. There is some financial and casework support provided by CPS.

3. Legal Guardianship or Adoption – Legal guardianship and adoption are permanent legal placements that do not qualify the child for McKinney-Vento services based on their placement situation. However it is possible that an adoptive or legal-guardianship family may be homeless depending upon their living situation, separate and apart from child placement issues. Each situation must be looked at individually to decide eligibility for McKinney-Vento services.

While children in the above formal substitute-care situations generally are not eligible for homeless services under McKinney-Vento, they are frequently eligible for the following services through legislation aimed at serving children in state conservatorship: school enrollment, school nutrition programs at free or reduced prices, and Title I services. Unaccompanied youth (youth not in the custody or a parent or legal guardian) may be eligible for food stamps, housing and other financial assistance from the state. An unaccompanied youth parent of a child – may be eligible for Temporary Assistance for Needy Families (TANF), food stamps, Section 8 housing or transitional housing assistance, and day-care assistance. A disabled child is usually eligible for Supplemental Security Income (SSI), while a child with a deceased parent generally qualifies for Social Security. Before assuming a child in formal substitute care is automatically eligible for any of these services, be sure to verify their eligibility with those who administer the specific programs.

Children and youth are also frequently placed through more informal means, without court order or CPS conservatorship. These children are generally considered to be eligible for homeless services under Mckinney-Vento. The situations below meet the definition of informal placements.

1. Relative Care – This is a relative home where placement is made in one of several ways. Placement may be voluntary and made by the parents of a child, with or without CPS suggestion to do so; placement may also be made temporarily by CPS while continuing an investigation, or while seeking court order and a more formal placement situation, or while providing family-based safety services (FBSS program) to the family prior to the child’s return; or placement may occur by the child/youth voluntarily going to stay with a relative. There is no home-study completed by the state. The home is not certified or licensed for the child’s care. There is no court order for placement, and CPS does not seek or retain conservatorship. This is considered a “doubled-up” situation under McKinney-Vento.

2. Non-Relative Care – Non-relative care may also occur when a family friend agrees to care for a child voluntarily placed with them by the parent, or the unaccompanied youth voluntarily seeks permission to stay with the non-relative family, or CPS permits the child to remain with the family friend while they continue an investigation, provide FBSS to the family, or seek a court-order and conservatorship. This may include situations as informal as “couch surfing”, where youth move from one friend’s home to that of another, without any formal agreement for care by the adults in the home. This is considered a “doubled-up” situation under McKinney-Vento.

3. Emergency Shelter Care – Placement of a child/youth in an emergency shelter may be made temporarily by CPS to “await” foster (family) home, or foster group home placement, voluntarily by the parents of children/youth through an agreement with the shelter – sometimes at the suggestion of CPS, or by the child/youth voluntarily going to the shelter to seek services. Domestic violence shelters, runaway youth shelters, children’s shelters and homeless shelters are included in this definition. There is usually not a court order for placement, and CPS may or may not retain custody; however the nature of emergency shelter care is temporary whether CPS places the child there or not. Residence in temporary shelter situations qualifies a child for McKinney-Vento services.

4. Transitional Living – Children and youth in transitional living situations are eligible for services under McKinney-Vento, as long as there is not placement through a court order, with CPS conservatorship.

5. Unaccompanied Youth – Unaccompanied youth who stay with relatives or friends are eligible for McKinney-Vento services.

Children in the above informal placement situations have the same rights under McKinney-Vento as other students experiencing homelessness. These rights include the right to enroll in, participate in, and succeed in public school. See other fact sheets and resources on the THEO web site at www.utdanacenter.org/theo .

Resolving Enrollment Disputes

Janet Williams, 16, and her mother, Tonya Williams, (pseudonyms) were both being physically and emotionally abused by Tonya’s live-in boyfriend. When the abuse became intolerable for the mother and daughter, they sought refuge with Tonya’s cousin in a community about 175 miles from where they had been living. The new high school where Janet would attend refused to enroll her, stating that without records or a permanent address, Janet was ineligible to enroll in school.

While attempting to enroll Janet, Ms. Williams noticed a poster in the main office that said students who were in temporary living situations had the right to enroll in school, even if they lacked records of any kind. Ms. Williams pointed out the poster to the enrollment clerk and told the clerk that it seemed Janet had the right to enroll based on what the poster said. The clerk said she didn’t know anything about what that poster said, she just had been told to refuse enrollment to students who didn’t have a permanent address or school records.

Ms. Williams noted the toll-free number on the poster and called it when she arrived back at her cousin’s home. She reached a staff member from the Texas Homeless Education Office (THEO), who informed Ms. Williams that Janet does have the right to enroll in and attend the school. The THEO staff member then called the district and explained the McKinney-Vento Act to the principal, who called Ms. Williams and asked her to bring Janet back to the school so she could get enrolled promptly. Upon Ms. Williams’ return to the school, she was given a letter from the school stating that after reviewing the situation, Janet would be allowed to enroll in and attend Harry Potter West High School.

Even though school districts across Texas have received training on the educational rights of children and youth experiencing homelessness as required by the federal McKinney-Vento Act and state statutes, the scenario described above still occurs, depriving homeless students of their right to an education.

What are schools required to do when they believe a student does not have the right to enroll?

Whenever a dispute arises, a district should first determine whether or not that student is homeless, as defined by the McKinney-Vento Act (for the educational definition of homelessness, please visit http://www.utdanacenter.org/theo/pdffiles/RP8_WhoIsHomeless.pdf). If the student is determined to be homeless or even potentially homeless, the district must enroll the student in the school in which enrollment is sought, even if the district believes the student does not have the right to attend the school in question. While the student is enrolled, the district has the right to gather information about the student’s situation and make a determination about the student’s right to continue enrollment in the school.

Once the district has completed its investigation, the district must notify the parent/caregiver or unaccompanied student in writing of the district’s decision, even if the decision is that the student may continue enrollment in the school. If the district finds the student is not eligible for enrollment in the school, then the notification letter should include specific instructions on how the student can appeal the decision.

For additional guidance on enrolling homeless students in school, please visit the THEO website at http://www.utdanacenter.org or call 1-800-446-3142.