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Best Interest Determination

Best Interest and Educational Stability for Children in Out-of-Home Care

Under the Every Student Succeeds Act (ESSA), the presumption is that a student will remain in the school of origin, i.e., the school in which the child was enrolled or the last school in which the child was enrolled at the time of placement into out-of-home care; a student should only change schools if remaining in the school of origin is not in the child’s best interest, as determined collaboratively by the school and the child welfare agency. While the law and regulations do not provide a clear definition of the term “best interest,” the non- regulatory guidelines issued jointly by the U.S. Departments of Education and Health and Human Services and other documents do identify some factors that should be considered when attempting to ensure educational stability (i.e., best interest):

When making a best interest determination for school stability for a child entering an out-of- home care placement, the following core factors should be taken into consideration:

  • preferences of the student, the parent, and any education decision-maker;
  • safety of the student;
  • educational needs and strengths (specialized language services, individual education plan (IEP), advanced placement (AP) courses).

These additional factors should be considered in conjunction with the above factors:

  • expected length of placement and the student’s permanency plan;
  • number of schools the student has attended over the past few years and how transfers have impacted the student;
  • continuity in the student’s ethnic, cultural, and linguistic background;
  • student’s attachment to the school, including meaningful relationships with staff and peers;
  • whether the timing of the transfer would coincide with a logical juncture, such as the end of the school semester or school year;
  • what school(s) the student’s sibling(s) attend; and
  • how the length of the commute would impact the student.

Important Note: The non-regulatory guidance specifically states that the cost of transportation should not be considered when determining a student’s best interest.

While the law and the final regulations are silent on the issue of differences of opinion between the school and the child welfare agency in terms of the best interest of the student, the federal guidance indicates that the child welfare agency should be considered the final decision-maker. The rationale for this is that the child welfare agency is “uniquely positioned to assess vital non-educational factors such as safety, sibling placements, the child’s permanency goal, and other components of the case plan. The child welfare agency also has the authority, capacity, and responsibility to collaborate with and gain information from multiple parties, including parents, children, schools, and the court in making these decisions.”

It is important to gather information from a variety of sources, including family members, school staff from the school of origin school of residence, other professionals working with the student or the family, and any other appropriate parties. The attached worksheet, which was developed by the state of Ohio and modified for Wisconsin, may be helpful in the process of determining the student’s best interest.

You may also find the document entitled “Promoting School Success for Foster Children: A Desk Guide for Caseworkers" to be useful. It was created by the Department of Children and Families for use by county caseworkers.
In addition, the Department of Children and Families has created an Education Passport for the purpose of sharing child welfare information with schools.

Best Interest Determination Worksheets

For questions about this information, contact Kyle Peaden (608) 266-5404