Who is the Parent?
Under the Individuals with Disabilities Education Improvement Act (IDEA), and as further narrowed by the Ohio Operating Standards for the Education of Children with Disabilities, “parent” means:
- A biological or adoptive parent (not a foster parent);
- A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions (does not include the state, if the child is a ward of the state);
- An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or
- A surrogate parent (who has been appointed in accordance with OAC 3301-51-05).
A judicial decree or order may identify a specific person to act as the parent or to make educational decisions on behalf of the child (under options 1 through 3 as specified above). However, it is important to recognize that a biological parent’s educational decision-making authority generally controls over all other individuals who may otherwise meet the definition of parent for a student with a disability, unless such biological parent has never established paternal rights, or has been divested of all parental rights.
Surrogate Parent
The IDEA requires school districts to ensure that the rights of a child are protected when 1) no parent can be identified, 2) a parent cannot be located after reasonable efforts, 3) the child is a ward of the state, or 4) the child is an unaccompanied homeless youth as defined under the McKinney-Vento Homeless Assistance Act. Under these conditions, protections are safeguarded through the appointment of a surrogate parent—an individual assigned to assume the rights and responsibilities of a parent. Ohio’s Operating Standards specify that both the process for determining whether a child needs a surrogate parent and the assignment of a surrogate parent are duties retained by the district of residence. However, if a child is a ward of the state, the judge overseeing the child’s case may appoint a surrogate parent.
Practical Application
- It is vital for Ohio school districts to have a clear process to determine when a surrogate parent should be appointed and do so in a timely manner. Such a process should include a thorough review of any applicable court orders related to the child to avoid interference with any residual parental rights. A district of service should coordinate with the district of residence, including notification to the district of residence when a child is suspected of needing appointment of a surrogate parent.
- It is important to remember that a child may be placed in temporary custody of an Ohio County Department of Job and Family Services without termination of biological parent’s parental rights. Unless parental rights have been completely terminated (e.g. DCFS has permanent custody of the child, a court order specifies parent has no educational decision-making authority, etc.), or the district is unable to locate or identify a parent, a surrogate parent should not be assigned (and biological parent should continue to be included in any IDEA processes for their child and afforded all procedural safeguards). A child in foster care does not automatically need a surrogate parent.
- When biological parents are divorced, both retain rights to access their child’s records absent a court order to the contrary. However, a court order or decree should typically identify the parent who retains educational decision-making authority for the child. Absent identification of one parent having sole decision-making authority, both parents have equal rights. Designation as the residential parent for school purposes only controls enrollment, not decision-making authority.
- In Ohio, a parent cannot sign away parental rights to another individual through an affidavit.
- In Ohio, a grandparent may serve as a “parent” through a court order, grandparent power of attorney, or caretaker authorization affidavit.
- Individuals (outside of the school district) who do not meet the definition of “parent,” may not access a student’s records absent the “parent’s” express written authorization. For example, individuals who are listed as a student’s emergency contacts do not automatically meet the definition of “parent” or have automatic authorization to access the student’s records and/or confidential information.
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Weston Hurd LLP attorneys regularly assist school districts in all aspects of school law. For further information please contact Lisa Woloszynek (lwoloszynek@westonhurd.com), Kathryn Perrico (kperrico@westonhurd.com), or any of the education law attorneys.
