When a North Carolina county department of social services has legal custody of a handicapped child, can the DSS director sign consent forms for the child's special education services, or must a separate surrogate parent be appointed to represent the child's educational interests?

Plain-English summary

When a handicapped child needs special education services under what is now called the Individuals with Disabilities Education Act (IDEA), federal law requires a parent or surrogate to consent to the evaluation and the individualized education program (IEP). For children whose parents are unknown or unavailable, or who are wards of the state, federal law requires the state to appoint a surrogate parent. That surrogate stands in the parent's place for IDEA purposes, including consenting to evaluations, IEPs, and placements.

There is a critical eligibility limit on who can be the surrogate. 20 U.S.C. § 1415(b)(1)(B) and 34 C.F.R. § 300.514(d) prohibit any employee of a public agency "involved in the education or care of the child" from serving as the surrogate. The point is to make sure the person consenting to the child's special education has the child's interests as their sole concern, not a competing institutional or budgetary concern.

The State Department of Public Instruction's Division for Exceptional Children asked whether the county DSS director could sign consent forms for a handicapped child in DSS custody. The answer matters because (a) DSS directors often have custody of children for foster-care reasons, and (b) the 1985 General Assembly had amended G.S. § 7A-647(2)(c) to expressly allow DSS directors to consent to "educational" treatments for juveniles in their custody.

Special Deputy Attorney General Edwin M. Speas, Jr. concluded that the DSS director could not serve as the surrogate parent for a handicapped child needing IDEA services. Two reasons:

1. Federal supremacy. Federal IDEA requires that the surrogate parent be someone other than an employee of an agency involved in the education or care of the child. DSS, when it has custody, is clearly involved in the child's care. Even though the 1985 General Assembly's amendment to § 7A-647(2)(c) appeared to authorize DSS directors to consent to educational matters, the federal rule controls when state and federal law conflict. Constantian v. Anson County applied Supremacy Clause principles to invalidate state action inconsistent with federal law.

2. The specific-controls-the-general canon. Article 9 of Chapter 115C, which deals specifically with handicapped children's education and surrogate parents, is more specific than G.S. § 7A-647(2)(c), which deals generally with DSS directors' consent authority over all juveniles in custody. National Food Stores v. ABC Board applied the specific-controls-general canon. So even within state law, the special-education-specific framework displaces the general DSS-consent framework for handicapped children.

The AG noted that North Carolina's surrogate-parent provisions in § 115C-114 and § 115C-116 were not as comprehensive as the federal IDEA framework. § 115C-106(b) declared that the purpose of Article 9 was to bring state law into conformity with federal law, and the State Board of Education's regulation (16 N.C.A.C. 2E.1520) extended surrogate-parent duties to all aspects of the educational process. So even as a matter of state law, the surrogate-parent framework was the controlling channel for consenting to handicapped children's special education.

The opinion also addressed Willie M. children. Willie M. v. Hunt was a long-running federal consent decree in North Carolina concerning services for emotionally disturbed and learning-disabled children. The AG noted that Willie M. did not, and could not, repeal state and federal law on surrogate parents; Willie M. children had no greater rights than the IDEA already gave them.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Individuals with Disabilities Education Act has been substantially reauthorized and amended (1990 IDEA, 1997 amendments, 2004 IDEIA). The federal regulations are now in 34 C.F.R. Part 300. The surrogate-parent requirement (now 20 U.S.C. § 1415(b)(2)) has been refined to clarify foster-parent eligibility, time limits on appointment, and other procedural details. North Carolina's Article 9 has been restructured. G.S. § 7A-647 has been recodified into Chapter 7B (Juvenile Code rewrite, 1999). The bottom-line rule (an independent surrogate parent, not the DSS director, makes IDEA decisions for a handicapped child whose parents are unavailable) has not changed, but the specific procedural framework should be reviewed against current law.

Background and statutory framework

The Education for All Handicapped Children Act of 1975 (now the Individuals with Disabilities Education Act) requires states receiving federal special-education funding to provide a free appropriate public education to all children with disabilities, including children whose parents are not in the picture. The surrogate parent device fills the parental-consent role for those children.

The conflict-of-interest rule sits at the heart of IDEA's procedural safeguards. School districts and state agencies have financial and administrative interests in special-education placement decisions: an expensive private placement costs more, an aggressive set of related services adds to the district's costs. If the consenting "parent" were a district employee or an agency employee, that conflict would taint the decision. Federal law therefore insists on independence.

For children in foster care or other agency custody, the implementing mechanism is statewide: the state must have a system for identifying eligible children and appointing surrogate parents from outside the agencies involved in their care. North Carolina's State Board of Education adopts and administers the procedures. Volunteers (typically trained citizen advocates, sometimes attorneys associated with the State Bar's pro bono programs) serve as surrogates.

The 1985 General Assembly's amendment to § 7A-647(2)(c) created a state-law conflict by giving DSS directors broad authority to consent to "educational ... evaluations or treatment" for juveniles in their custody. That conflict-resolution is the analytical core of the 1986 AG opinion. The AG used both federal supremacy and state-law statutory construction to make the surrogate-parent system control.

Common questions

Who could serve as the surrogate parent?

A volunteer not employed by DSS, the school district, or any other agency involved in the child's education or care. The State Board of Education adopted procedures for recruiting, training, and assigning surrogate parents. Foster parents who were not also employed by the school district or DSS could often serve as the surrogate.

What if no surrogate was available?

The agency had to find one. The federal law and the state regulations required the state to have a system for identifying and appointing surrogates. Failure to do so was itself a federal violation that could trigger compliance action.

Could the DSS director consent to non-educational treatment for the same child?

The opinion was confined to educational consent for handicapped children. § 7A-647(2)(c) gave the DSS director consent authority over psychiatric, psychological, and other remedial treatment. Non-educational consent (medical care, residential placement) remained within DSS authority under the general juvenile code.

What was Willie M.?

Willie M. v. Hunt was a class action filed in 1979 in the U.S. District Court for the Western District of North Carolina, settled by consent decree, providing for state services for severely emotionally disturbed and behaviorally handicapped children. The case had a substantial impact on North Carolina's child services system through the 1980s and into the 1990s. The AG's reference here was to confirm that Willie M. did not give DSS directors any surrogate-parent authority they would not otherwise have under IDEA.

Did the same rule apply when a private foster-care agency, rather than DSS, had custody?

The federal regulation applies to "public agencies" involved in the child's education or care. A purely private foster-care agency might not fit literally, but in practice the state would still need to appoint a surrogate because the private agency's involvement could itself create conflict concerns. The DPI and the school district's responsibility to ensure a surrogate exists is independent of who has custody.

Source

• Landing page: https://ncdoj.gov/opinions/consent-to-educational-services-for-children-in-its-custody/

Citations

• 20 U.S.C. § 1415(b)(1)(B) (federal IDEA surrogate parent requirement; conflict-of-interest exclusion)
• 34 C.F.R. § 300.514 (federal regulation)
• G.S. § 115C-106(b), § 115C-114, § 115C-116(a) and (c)
• G.S. § 7A-647(2)(c) (DSS director consent authority over juveniles in custody, as amended by 1985 Session Laws Ch. 777)
• 16 N.C.A.C. 2E.1520
• Constantian v. Anson County, 244 N.C. 221, 93 S.E.2d 163 (1956)
• National Food Stores v. Board of Alcoholic Control, 268 N.C. 654, 151 S.E.2d 582 (1966)

Original opinion text

Requested By: Johnnie Ellerbe, Consultant Division for Exceptional Children State Department of Public Instruction

Question: Do directors of county departments of social services have authority to consent to educational services for exceptional children?

Conclusion: No.

A question has arisen which concerns the Departments of Public Instruction and Human Resources as well as local government agencies regarding the authority of directors of county departments of social services to sign consent forms for educational purposes for handicapped children in the legal custody of such departments. Resolution of this question requires a careful examination of both state and federal law.

States receiving federal funding for support of educational programs are required by federal law to adopt and enforce "procedures to protect the rights of the child whenever the parents of the child are not known, unavailable, or a child is a ward of the state, including the assignment of an individual . . . to act as surrogate for the parents or guardians." 20 USC § 1415(b)(1)(B). Federal regulations make it clear that a surrogate parent's obligation to protect "the rights" of a handicapped child extends to all aspects of the educational process for a handicapped child. 34 CFR 300.514. North Carolina receives federal funding for the education of handicapped children and thus is bound to comply with these requirements. In fact, our law specifically requires the appointment of a surrogate parent under the same circumstances as 20 USC § 1415(b)(1)(B).

G.S. 115C-116(a). Our statutes, however, are not as all-encompassing as the federal statutes in regard to the scope of the obligation of a surrogate parent. Chapter 115C does not expressly require that surrogate parents be appointed to protect "the rights" of handicapped children. Instead, surrogate parents are only given express duties or rights in connection with access to records, G.S. § 115C-114, and in connection with administrative appeals from the placement of handicapped children. G.S. § 115C-116(a). Nevertheless, it seems clear that the General Assembly intended that the obligations of a surrogate parent have the scope specified by federal law. G.S. § 115C-106(b) provides that the purpose of Article 9, Chapter 115C, which includes the specific references to surrogate parents, is to "bring state law, regulations and practice into conformity with relevant federal law." In this connection, regulations adopted by the State Board of Education, like the federal regulations, specifically provide that the duties of surrogate parents extend to all aspects of the educational process for handicapped children. 16 NCAC 2E.1520.

In those circumstances where a surrogate parent must be appointed, federal law prohibits any "employee of the state educational agency, local educational agency or intermediate educational agency involved in the education or care of the child" from acting as a surrogate parent. 20 USC § 1415(b)(1)(B). Federal regulations extend this prohibition to any employee of a "public agency which is involved in the education or care of the child." 34 C.F.R. 300.514(d). Similarly, state law prohibits any "employee of the state or any local government educational or human resource agency responsible for or involved in the education or care of the child" from acting as a surrogate parent. G.S. § 115C-116 (c). The manifest purpose of these statutes is to assure that educational decisions for handicapped children whose parents are unknown or unavailable or who are wards of the State will be made by persons whose sole interest is the welfare of the child.

A handicapped child who is placed in the custody of a county director of social services would appear to be a ward of the state. Therefore, under the federal and state laws and regulations cited above a surrogate parent must be appointed to represent the interests of that handicapped child if his parents are unknown or unavailable. Since a county department of social services given custody of a handicapped child would clearly be involved in the education or care of that handicapped child, these laws and regulations would prohibit the county director of social services, or other department employees, from serving as a surrogate parent.

Other statutes, however, indicate a contrary result. G.S. § 7A-647(2)(c) was amended by Chapter 777 of the 1985 Session Laws to provide the following in regard to juveniles in the custody of a county department of social services:

In the case where the parent is unknown, unavailable or unable to act on behalf of their child or children, the director may, unless otherwise ordered by the judge, arrange for, provide or consent to any psychiatric, psychological, educational, or other remedial evaluations or treatment for the juvenile placed by a judge or his designee in the custody or physical custody of a county department of social services under the authority of this or any other chapter of the General Statutes.

G.S. § 7A-647(2)(c) as amended appears on its face to be in conflict with 20 USC § 1415 and the other state laws cited above to the extent that G.S. § 7A-647(c)(2) authorizes the county director of social services to make educational decisions for a handicapped child in the custody of a department of social services. In our opinion, this apparent conflict should be resolved by giving full effect to 20 USC § 1415.

We are of this opinion for two reasons. First, where there is a conflict between state and federal law the federal law takes precedence under the Supremacy Clauses of the United States and North Carolina Constitutions. CONSTANTIAN v. ANSON COUNTY, 244 N.C. 221, 93 S.E.2d 163 (1956). Under federal law a surrogate parent must be appointed to represent the interests of a handicapped child who is a ward of the state and an employee or agency involved in the education or care of that child may not serve as a surrogate parent. 20 U.S.C. 1415. Since G.S. § 7A-647 (2)(c) conflicts with federal law, it must give way to the extent of the conflict. Second, when two statutes are in conflict, a statute dealing specifically with certain subject matter will be construed as an exception to a statute dealing generally with the same subject matter.

NATIONAL FOOD STORES v. BOARD OF ALCOHOLIC CONTROL, 268 N.C. 654, 151 S.E.2d 582 (1966). In this case, Article 9, Chapter 115C of the General Statutes identifies the surrogate parent as the person responsible for making educational decisions for a handicapped child who is a ward of the state and whose parents are unavailable or unknown. G.S. § 7A-647(2)(c) deals generally with the authority to make various kinds of decisions for juveniles placed in the custody of the Department of Social Services, whether the child is handicapped or not. Therefore, the provisions of Article 9, Chapter 115C should be considered as an exception to the provision of G.S. 7A-647(2)(c) to the extent those statutes are in conflict.

In sum, it is the opinion of this office that in those situations where the parents of a handicapped child are unavailable or unknown and the child is a ward of the state the responsibility and authority for representing that child's educational interests rests with a surrogate parent and not with the county director of social services. Further, G.S. § 115C-116(c) and 20 USC § 1415(b)(1)(B) prohibit the county director of social services or any employee of a department of social services involved in the education or care of such child from serving as a surrogate parent in such circumstances.

This opinion applies to WILLIE M. children. The orders in the WILLIE M. case did not, and could not, repeal the provisions of state and federal law and those orders in fact provide that WILLIE M. children have no greater rights to an education than provided by state and federal law.

LACY H. THORNBURG
ATTORNEY GENERAL

Edwin M. Speas, Jr.
Special Deputy Attorney General