8.01 Identification of Parent

8.01.01 Definition of Parent

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Parent means -

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

(2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;

(3) A guardian generally authorized to act as the child's parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);

(4) 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

(5) A surrogate parent who has been appointed in accordance with § 300.519 or section 639(a)(5) of the Act.

(b)(1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph

(a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.

(2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (a)(4) of this section to act as the "parent" of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the "parent" for purposes of this section. 34 C.F.R. § 300.30(a).

(1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph

8.01.02 Effort to Locate Parent

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Reasonable efforts shall be made to locate the parent. These may be made through documented phone calls, letters, certified letters with return receipts, and visits to the parent's last known address. Minn. R. 3525.2435

8.01.03 Surrogate Parents

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A. When a Surrogate is Required

Each public agency must ensure that the rights of a child are protected when -

(1) No parent (as defined in § 300.30) can be identified;

(2) The public agency, after reasonable efforts, cannot locate a parent;

(3) The child is a ward of the State under the laws of that State; or

(4) The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 1143a(6)). 34 C.F.R. § 300.519(a).

The district shall appoint the surrogate parent when:

A. the parent, guardian, or conservator is unknown or unavailable;

B. the pupil is a ward of the commissioner of human services; or

C. the parent requests in writing the appointment of a surrogate parent. The request may be revoked in writing at any time. Minn. R. 3525.2440.

B. Agency Decision

The duty of a public agency under paragraph (a) of this section includes the assignment of an individual to act as a surrogate for the parents. This must include a method -

(1) For determining whether a child needs a surrogate parent; and

(2) For assigning a surrogate parent to the child. 34 C.F.R. § 300.519(b).

In the case of a child who is a ward of the State, the surrogate parent alternatively may be appointed by the judge overseeing the child's case, provided that the surrogate meets the requirements in paragraphs (d)(2)(i) and (e) of this section. 34 C.F.R. § 300.519(c).

The district shall consult the county social services office before appointing the surrogate parent when a pupil is the ward of the commissioner of human services. Minn. R. 3525.2445.

C. Selection

(d)(1) The public agency may select a surrogate parent in any way permitted under State law.

(2) Public agencies must ensure that a person selected as a surrogate parent -

(i) Is not an employee of the SEA, the LEA, or any other agency that is involved in the education or care of the child;

(ii) Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and

(iii) Has knowledge and skills that ensure adequate representation of the child.

(e) A person otherwise qualified to be a surrogate parent under paragraph (d) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent. 34 C.F.R. § 300.519(d)-(e).

The SEA must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after a public agency determines that the child needs a surrogate parent. 34 C.F.R. § 300.519(h).

In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to paragraph (d)(2)(i) of this section, until a surrogate can be appointed that meets all of the requirements of paragraph (d) of this section. 34 C.F.R. § 300.519(f).

D. Surrogate Duties and Skills

The surrogate parent may represent the child in all matters relating to -

(1) The identification, evaluation, and educational placement of the child; and

(2) The provision of FAPE to the child. 34 C.F.R. § 300.519(g).

The district shall either make the information and training available to the surrogate parent or appoint a surrogate parent who has all of the following:

A. a knowledge of state and federal requirements;

B. a knowledge of district structure and procedures;

C. an understanding of the nature of the pupil's disability and needs; and

D. an ability to effectively advocate for an appropriate educational program for the pupil. Minn. R. 3525.2455.

E. Removal of Surrogate

A surrogate parent may be removed by majority vote of the school board. The surrogate parent must be notified of the time and place of the meeting at which a vote is to be taken and of the reasons for the proposed removal. The surrogate parent shall be given the opportunity to be heard. Removal may be for any of the following reasons:

A. failure to perform the duties required in the team meeting and IEP process and those cited in Code of Federal Regulations, title 34, part 300, and United States Code, title 20, chapter 22, sections 1400 et seq.;

B. conflict of interest as referenced in Code of Federal Regulations, title 34, section 300.515 (c)(2);

C. actions that threaten the well-being of the assigned pupil;

D. failure to appear to represent the pupil; or

E. the pupil no longer needs special education and related services. Minn. R. 3525.2450.

8.01.04 Transfer of Parental Rights at the Age of Majority

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A State may provide that, when a child with a disability reaches the age of majority under State law that applies to all students (except for a child with a disability who has been determined to be incompetent under State law) -

(1)(i) The public agency must provide any notice required by this part to both the child and the parents; and

(ii) All other rights accorded to parents under Part B of the Act transfer to the child;

(1) All rights accorded to parents under Part B of the Act transfer to children who are incarcerated in an adult or juvenile, State or local correctional institution; and

(2) Whenever a State provides for the transfer of rights under this part pursuant to paragraph (a)(1) or (a)(2) of this section, the agency shall notify the child and the parents of the transfer of rights. 34 C.F.R. § 300.520(a).