71 Op. Att'y Gen. 28, 32 (1982)
The implementing federal regulations provide:
71 Op. Att'y Gen. 28, 32 (1982)
(a) General
. Each public agency¯3
shall insure that the rights of a child are protected when:
71 Op. Att'y Gen. 28, 32 (1982)
(1) No parent (as defined in 121a.10) can be identified;
71 Op. Att'y Gen. 28, 32 (1982)
(2) The public agency, after reasonable efforts, cannot discover the whereabouts of a parent; or
71 Op. Att'y Gen. 28, 32 (1982)
(3) The child is a ward of the State under the laws of that State.
71 Op. Att'y Gen. 28, 32 (1982)
(b) Duty of public agency
. 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.
71 Op. Att'y Gen. 28, 32 (1982)
(c) Criteria for selection of surrogates
. (1) The public agency may select a surrogate parent in any way permitted under State law.
71 Op. Att'y Gen. 28, 32 (1982)
(2) Public agencies shall insure that a person selected as a surrogate:
71 Op. Att'y Gen. 28, 32 (1982)
(i) Has no interest that conflicts with the interest of the child he or she represents; and
71 Op. Att'y Gen. 28, 32 (1982)
(ii) Has knowledge and skills, that insure adequate representation of the child.
71 Op. Att'y Gen. 28, 32 (1982)
(d) Non-employee requirement; compensation
. (1) A person assigned as a surrogate may not be an employee of a public agency which is involved in the education or care of the child.
71 Op. Att'y Gen. 28, 32 (1982)
(2) A person who otherwise qualifies to be a surrogate parent under paragraphs (c) and (d)(1) 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.
71 Op. Att'y Gen. 28, 32 (1982)
(e) Responsibilities
. The surrogate parent may represent the child in all matters relating to:
71 Op. Att'y Gen. 28, 33 (1982)
(1) The identification, evaluation, and educational placement of the child, and
71 Op. Att'y Gen. 28, 33 (1982)
(2) The provision of a free appropriate public education to the child.
71 Op. Att'y Gen. 28, 33 (1982)
45 C.F.R. 121a.514 (1980).
71 Op. Att'y Gen. 28, 33 (1982)
The procedural safeguards of 20 U.S.C. 1415 have been interpreted as controlling when there is a conflict between state and federal procedural requirements. Vogel v. School Bd. of Montrose R-14 School Dist.
, 491 F. Supp. 989 (W.D. Mo. 1980); Monahan v. State of Neb.
, 491 F. Supp. 1174 (D.C. Neb. 1980).
71 Op. Att'y Gen. 28, 33 (1982)
Although Wisconsin has not adopted any "surrogate parent" regulation, another federal regulation indicates state law procedures apply at least in situations where parental consent is withheld: "Procedures where parent refuses consent
. (1) Where State law requires parental consent before a handicapped child is evaluated or initially provided special education and related services, State procedures govern the public agency in overriding a parent's refusal to consent
." 45 C.F.R. 121a.504(c)(1) (1980).
71 Op. Att'y Gen. 28, 33 (1982)
Since there is no comparable surrogate parent procedure in state law, it is appropriate to consider other state procedures which could be utilized by the Department when a parent cannot be located. At least two procedures are available under state law that do not conflict with the procedural requirements of federal law.
71 Op. Att'y Gen. 28, 33 (1982)
The first available state procedure is sec. 48.13, Stats., which gives state circuit courts jurisdiction of children alleged to be in need of protection or services. One of the criteria for a court's acquiring jurisdiction is that a child be without a parent or guardian. Sec. 48.13(1), Stats. The Department could petition a court under this section to order EEN evaluation or placement for a child whose parents cannot be located.
71 Op. Att'y Gen. 28, 33 (1982)
The second procedure is a temporary guardianship. Sec. 880.15, Stats. The Department may proceed ex parte
under sec. 880.15(1), Stats., to have a temporary guardian appointed for a period of not more than sixty days. The statute also allows the authority of the temporary guardian to be limited to a specific set of duties, e.g.
, EEN evaluation and placement.
71 Op. Att'y Gen. 28, 34 (1982)
Question 3
71 Op. Att'y Gen. 28, 34 (1982)
Your third question asks if the Department can use the federal surrogate parent procedure when a parent fails to respond to a request for consent or cannot be located. The answer is no.
71 Op. Att'y Gen. 28, 34 (1982)
The surrogate parent regulation¯4
requires the "public agency" to insure children's rights by assigning an individual to act as a surrogate parent when it has been shown there is a need. "Public agency" is defined in the regulations. "As used in this part, the term 'public agency' includes the State educational agency, local educational agencies, intermediate educational units, and any other political subdivision of the State which are responsible for providing education to handicapped children." 45 C.F.R. 121a.11 (1980).
71 Op. Att'y Gen. 28, 34 (1982)
The Department is neither a state nor a local educational agency nor is it a political subdivision of the State responsible for providing education to handicapped children. Neither state nor federal law gives the Department the authority to appoint a surrogate parent.
71 Op. Att'y Gen. 28, 34 (1982)
In my opinion, the Department must utilize the procedures available in secs. 48.13 and 880.15, Stats., since no other procedures are available in state law when a parent cannot be located or refuses EEN services.
71 Op. Att'y Gen. 28, 34 (1982)
BCL:WAA
71 Op. Att'y Gen. 28, 28 (1982) - Footnote
Destination-13 See
chapter P.I. 11.03(4) Wis. Adm. Code, which repeats the statutory requirement for written parental consent prior to screening. Prior to screening, parents must be informed of a referral of their child for the screening process. Chapter P.I. 11.02(1)(b)1.b. Wis. Adm. Code.
71 Op. Att'y Gen. 28, 28 (1982) - Footnote
Destination-14 Chapter P.I. 11.04(1)(a) Wis. Adm. Code specifically requires that there be no placement until parental consent is secured.
71 Op. Att'y Gen. 28, 28 (1982) - Footnote
Destination-15 In Wisconsin the "public agency" referred to in the regulations is the Wisconsin Department of Public Instruction. 45 C.F.R. 121.a.11 (1980).
71 Op. Att'y Gen. 28, 28 (1982) - Footnote
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