Dated April 16, 2001

Linda L. Harant

Deputy County Attorney

Office of the Pinal County Attorney

Civil Division

P.O. Box 887

Florence, Arizona 85232

Dear Ms. Harant:

This is in response to your letter to Kenneth R. Warlick, former
Director of the Office of Special Education Programs (OSEP), written on
behalf of school districts and schools in the Pinal County Special
Education Consortium and other schools in Pinal County serving Indian
children residing on reservations. Your specific inquiry concerns
whether the regulations implementing Part B of the Individuals with
Disabilities Education Act (Part B), at 34 CFR §300.515 governing the
appointment of surrogate parents are applicable to public agencies
responsible for ensuring the provision of a free appropriate public
education (FAPE) to these children. Under Part B, a public agency must
ensure that the rights of a child with a disability are protected if (1)
no parent, as defined at 34 CFR §300.20, can be identified; (2) the
public agency, after reasonable efforts, cannot discover the whereabouts
of a parent; or (3) the child is a ward of the State under the laws of
that State. 34 CFR §300.515(a). If any of these situations is present,
the "duty" of the public agency includes the assignment of an individual
to act as a surrogate for the parents. The public agency must have a
method for determining whether a child needs a surrogate parent and for
assigning a surrogate parent to the child. 34 CFR §300.515(b).

As we understand your specific inquiry, since a tribal government is not
included in the definition of *State* applicable to Part B of IDEA as
defined by the regulation at 34 CFR §300.27, you question whether a
surrogate parent would need to be appointed if a child is made a ward of
a tribal court. As you point out, because of the absence of a reference
to tribal government in the definition of the term *State* in the Part B
regulations, a child who is a ward of a tribal court is not considered a
ward of the State under 34 CFR §300.515(a)(3). However, this is not a
sufficient basis for relieving the public agency of its responsibility
of ensuring that the rights of the children described in your inquiry
are protected through the appointment of a surrogate parent if the
appointment is deemed appropriate. As noted above, under 34 CFR
§3000.515(a), a public agency must also ensure that the rights of a
child are protected if no parent can be identified or the public agency,
after reasonable efforts, cannot discover the whereabouts of a parent.
In cases where the child is a ward of the tribal court and the parent's
right to make educational decisions has been terminated or transferred
by the tribal court to another individual, the public agency must
determine whether a parent as defined at 34 CFR §300.20 can be
identified.

According to your letter, a child's wardship status results in the
child's being in the custody, care and control of a tribal social
services agency. Physical custody may be given to an individual, often a
relative of the child. The courts usually give authority to make medical
and educational decisions either to the individual into whose physical
care the child is given, or for those students who are placed in a
facility operated by the social services agency, to an identified agency
caseworker. In both these situations, it appears that the parent's right
to make educational decisions has been terminated. If no parent can be
identified, it is Pinal County's responsibility to ensure that the
surrogate parent requirements at 34 CFR §300.515 are met. Nothing in
Part B prevents Pinal County from assigning the individual selected by
the tribal court to make educational decisions for the child to act as a
surrogate parent assuming that individual meets the criteria in 34 CFR
§300.515. In addition, nothing in Part B prevents the public agency from
appointing an individual who is a member of the child's Indian tribe as
a surrogate parent assuming that person meets the criteria set out in 34
CFR §300.515(c).

For those children in the physical custody of an individual such as a
relative, who has authority to make medical and educational decisions
for the child, the public agency may determine that a surrogate parent
is not needed. In determining whether the surrogate provisions of Part B
are applicable, a public agency must ascertain, as a threshold matter,
whether a parent, as defined at 34 CFR §300.20, can be identified. Under
the Part B definition of parent, *parent* means:

(1) A natural or adoptive parent of a child;

(2) A guardian but not the State if the child is a ward of the State;

(3) A person acting in the place of a parent (such as a grandparent or
    stepparent with whom the child lives, or a person who is legally
    responsible for the child's welfare); or

(4) A surrogate parent who has been appointed in accordance with
    §300.515.

> 34 CFR §300.20(a).

Paragraph (b) explains further that a State may allow foster parents to
act as parents under Part B, unless State law prohibits them from doing
so, but the following conditions must be satisfied. The natural parent's
authority to make educational decisions on the child's behalf must be
extinguished under State law. 34 CFR §300.20(b)(1). The foster parent
must have an ongoing, long-term parental relationship with the child,
must be willing to make educational decisions required under Part B, and
must have no interest that would conflict with the interests of the
child. 34 CFR §300.20(b)(2). As explained in the comments and responses
on the proposed regulations in the Analysis of Comments and Changes to
the final Part B regulations, published as Attachment 1, at 64 Fed. Reg.
at 12616:

> In situations where a child who is a ward of the State has a foster
> parent who meets the definition of parent in §300.20 and the foster
> parent is acting as the parent, the public agency should determine if
> there is a need for a surrogate parent, and whether further steps are
> necessary to ensure that the rights of the child are protected. In
> most cases where the foster parent meets the definition of a parent
> and is acting as the parent, there would be no need to appoint a
> surrogate, unless the agency determined that in the particular
> circumstances of the case a surrogate was necessary to ensure that the
> rights of the child were protected.

If the child is a ward of the tribal court and the individual with whom
the child is living does not fit within the definition of a "parent",
the public agency then would need to appoint a surrogate parent. If the
child is a ward of the tribal court and placed in a facility operated by
the social services agency, the public agency would need to determine
whether the child needs a surrogate parent and to assign an individual
to act as a surrogate if one is needed.

Section 300.515(c) of the Part B regulations sets out the criteria for
selection of surrogates. In general, paragraph (c)(2)(i) provides that,
except under paragraph (c)(3), the person selected as surrogate may not
be an employee of the SEA, the LEA, or any other agency that is involved
in the education or care of the child. 34 CFR §300.515(c)(2)(i).
However, under paragraph (c)(3), a public agency may select as surrogate
"a person who is an employee of a nonpublic agency that only provides
non-educational care for the child and who meets the standards in
paragraphs (c)(2)(ii) and (c)(2)(iii) of this section." Under these
criteria, the person selected as surrogate must have "no interest that
conflicts with the interests of the child he or she represents" and
"knowledge and skills that ensure adequate representation of the child."
34 CFR §300.515(c)(2)(ii)-(iii). Therefore, it may be possible for a
designated employee at the social service agency, if that social service
agency is a nonpublic agency that only provides non-educational care for
the child, to be appointed as the child's surrogate parent if that
individual meets the criteria in 34 CFR §300.515(c)(3).

We hope that you find this explanation helpful. If we can be of further
assistance, please contact Dr. JoLeta Reynolds of OSEP at (202) 205-5507
or Sarah Willis, the BIA Part B State contact in the Monitoring and
State Improvement Planning Division, at (202) 205-8658.

> Sincerely,
>
> /signed Patricia J. Guard/
>
> Patricia J. Guard
>
> Acting Director
>
> Office of Special Education Programs

cc: Dr. Angelita Felix, Director

Bureau of Exceptional Education, BIA

Lisa Graham Keegan, Superintendent of Public Instruction

Arizona Department of Education