By Shon T. Lieske
If you are like myself and, as I suspect, most attorneys practicing in the area of Juvenile Law, the ICPC is something you have heard of, and maybe even dealt with on occasion, but for the most part, is something that simply slips into the morass of other acronyms that you have some vague understanding of what it stands for, and less understanding of how it applies. In my three years as a practicing juvenile law attorney, I have had one case involving the Interstate Compact on the Placement of Children (ICPC), and following the “receiving state’s” completion of the home study, my client in that case decided to relinquish her parental rights, and so any further placement issues under the ICPC thereafter, quickly dissolved. Following that experience, I have simply been fortunate that no other case has yet to test my limited knowledge of the ICPC, and how to handle placement under this compact.
Fortunately, I was able to attend the National Association for of Counsel for Children’s 31st National Juvenile and Family Law Conference this past summer and listen to Vivek Sankaran speak on the issues commonly presented by the foster placement of a child across state lines, which would trigger the application of the ICPC. It is my hope that I can impart a few suggestions that I learned on how to facilitate out of state placement through the ICPC, and, if possible, avoid the application of the ICPC altogether.
APPLICATION OF THE ICPC
The ICPC was created and enacted by every state in the 1950’s with the intention of ensuring the safe and responsible placement of foster children across state lines by mandating that a state could not place a child in foster care in another state without the approval of the destination state’s child welfare agency and a determination in the destination state that the out of state placement is not contrary to the interests of the child. Despite the noble intentions of the compact, it is easy to see the problems and confusion apt to arise with the court’s and welfare agencies of two different states attempt to coordinate placement, especially when it involves the application of subjective standards by different states’ agencies and courts.
The ICPC generally applies when a child placed in foster care in one state has a relative or foster family in a second state that is willing to act as placement for the child from the first state. When this occurs, the Juvenile Court or Health and Human Services Agency (Welfare agency) in the state with the current placement of the child (the “Sending” state) must contact the Welfare agency in the state with the possible family placement (the “Receiving” state) to request that the Welfare agency in the Receiving state conduct a Home Study on the family requesting placement. The purpose of the Home Study is to determine whether the placement would be safe for the child, and then to determine whether the placement would be contrary to the interest of the child. Both determinations are made by the Receiving state’s welfare agency. Under the recommendations of the ICPC, this home study is to be completed by the receiving state within 30 days of the Sending state’s request, however, this time line is rarely-if ever-followed. Meanwhile your juvenile is languishing in either a “stranger” foster placement or a temporary care facility.
Even if you can get the Home Study done in somewhat of a timely manner, the problems really begin if the Welfare agency of the receiving state denies placement based on the “…unless contrary to the interest of the child” language in the compact. Since, according to the compact, this decision is made by the out of state Welfare agency, the Sending state’s Juvenile/County Court has no jurisdiction to review the decision, of an out of state agency, and the compact contains no provision for review of this decision and there is no right to appeal. At this point, as an advocate for the child or the family, you are left with few options, which are primarily informal. One option is to attempt to “fix” the problem with the placement family which caused the denial of the placement in the first place and request another home study be completed. If you have previously convinced your own Juvenile Court Judge that this placement is best for the child, you can ask your Judge to call a Juvenile Court Judge in the Receiving state and see if the Judge can help facilitate the process with the Receiving state’s Welfare agency. Lastly, in some instances, if the Receiving state allows it, you can have a private agency conduct the home study.
AVOIDING THE ICPC
Due to the problems arising from going through the ICPC to place a child out of state, avoiding the ICPC altogether may be the best course of action. The first course of action, of course, is to determine if the ICPC even applies to your case before you bring in the Receiving state’s Welfare agency. First, the ICPC does not apply to out of state visits. The guidelines under the model regulations of the ICPC state that anything over thirty days qualifies as “placement.” Second, if you are confident in the out-of-state placement and if the family in the Receiving state is willing to execute a guardianship of the child, you can file the guardianship in the Sending state and then transfer the guardianship to the state court in the Receiving state. Since the ICPC only applies to out of state placement, placing the child in guardianship negates the necessity to move the case through the ICPC. Third, if the out of state placement is a family placement, you can argue that the child going to live with family out of state is not “placement” for the purposes of the ICPC. However, this would be a narrow exception that would not apply in most cases where out of state placement may be necessary. I could possibly see this argument being applicable in some of the recent “Safe Haven” cases where there is an out of state family placement for the child in an abandonment case and the parent abandoning the child has no other contacts with Nebraska except for utilizing the current Safe Haven Law to abandon the child in Nebraska. Lastly, ICPC may not apply to a biological parent who is out of state and seeking placement of his or her child. In order to avoid the application of the ICPC or an arbitrary denial of placement by an out of state welfare agency, you can argue that the equal protection clause negates the application of the ICPC in that the ICPC may create two groups of “parents,” in-state and out-of-state, in which different rules apply. You can also base an argument on the Constitutional right that parents have to raise their children as they see fit, and the parent/child relationship cannot be severed without a finding of unfitness.
FINAL THOUGHTS
The bottom line in dealing with cases that may touch the ICPC is that dealing with the compact can be difficult and may cause unintended and unfortunate consequences to the child that are not the child’s best interest. The strategies I learned at this conference can be helpful in working through the ICPC or help you avoid the ICPC altogether. However, as child and parent advocates, we must always remember to keep the best interest of the child in mind and always remember that we still bear the “persuasive burden” of convincing our own Juvenile Court Judge that the out of state placement is a good and appropriate placement for the child regardless of any issues caused by the ICPC.
Shon Lieske is a private attorney practicing in Minden, Nebraska. He may be reached at shon.lieske@lieskelawfirm.com or 308-832-2103.
Sources: Presentation and handouts given by Vivek Sankaran, JD/CWLS, at the NACC Conference on August 5, 2008, and the article Reform State Compact to Reunite Families by Ms. Sankaran, The Detroit News, November 5, 2008. Vivek Sankaran is a clinical assistant professor of law at the University of Michigan Law School and an expert on foster care issues.
