Chapter 13 Representing Out-of-state and Non-citizen Parents

LibraryRepresenting Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.)

CHAPTER 13 Representing Out-of-State and Non-Citizen Parents

Annick I. Lenoir-Peek

13.01 Introduction

In our mobile society, it is not unusual for a child welfare case to involve parents or relatives who live in another state or country. This chapter, in two parts, will discuss some of the things counsel should know and do when representing such clients. Part I (Sections 13.02-13.06) focuses on representing parents who are living in another state than the one in which the Petition has been filed. For these cases, the most important law to become familiar with is the Interstate Compact on the Placement of Children (ICPC), a uniform law designed to ensure that a child can be safely placed in a home in another jurisdiction and to enable child welfare agencies to monitor those placements when necessary. These sections are designed to help counsel navigate the ICPC in order to advocate for the best possible outcome.

Representing parents who are not citizens or residents of the United States presents unique challenges that can be overcome with good advocacy. Part II (Sections 13.07 to 13.09) is intended to assist counsel in advocating for their non-citizen clients, whether they are located in this country or abroad.

PART I

13.02 Structure of the Interstate Compact on the Placement of Children (ICPC)

The Interstate Compact on the Placement of Children ("ICPC" or "Compact") is not a federal law. Rather, it is a uniform law that has been enacted in all fifty states, the District of Columbia, and the U.S. Virgin Islands. The Compact establishes a framework on how children will be placed across state lines when a child welfare agency or court is making the placement. The Compact does not apply when parents are making a placement across state borders unless it is for purposes of adoption. The goals of the ICPC are to ensure: (1) the safety of the child, (2) that the child receives needed services, and (3) that the sending state retains responsibility for the child. In general terms, the ICPC requires the state to which the child is being sent (the receiving state) to conduct and approve a home study of the proposed placement before the child can be sent there by the court in the state that has jurisdiction over the case (the sending state).

The ICPC is divided into ten articles. The most relevant articles for child welfare-related matters are Articles II, III, and V. The full text of the articles can be found on the web and is attached in the Appendix to this chapter.

13.02(a) Regulations

The ICPC is administered by the Association of Administrators of the Interstate Compact on the Placement of Children (the "Association"), a division within the American Public Human Services Association. The Association, created by Article VII, requires every state to designate a Compact Administrator who will, as part of the Association, "promulgate rules and regulations to carry out more effectively the terms and provisions" of the ICPC. These regulations provide detailed guidance on how the ICPC process works, but several courts have held that they are not binding because many states have not formally adopted them. See, e.g., H.P. v. Dep't of Children & Families, 838 So. 2d 583, 28 Fla. L. Weekly D203 (2003).

Counsel must determine how their jurisdiction regards the Association's regulations and whether they are legally binding. A copy of the regulations is attached in the Appendix to this chapter. Because they are subject to change, counsel should always be sure what the current regulations say. They are easily found through the Association's website.

13.03 The Applicability of the ICPC to Child Welfare Proceedings

When facing a potential interstate move of a child in foster care, counsel must first determine whether compliance with the ICPC is required. The ICPC governs the interstate placement of "any child for placement in foster care or as a preliminary to a possible adoption." ICPC art. III(a). The regulations broadly define "foster care" to include care "by a relative of the child, by a non-related individual, or . . . by the child's parent(s) by reason of a court-ordered placement." ICPC reg. no.3. Only placements of children with noncustodial parents over whom the court does not retain jurisdiction are exempted from this broad definition. See id. According to the regulations, the Compact also applies when a family who is under ongoing court oversight wishes to move to the receiving state, unless the stay will last for ninety days or less. ICPC reg. no. 1.

Many courts have rejected the broad language in these nonbinding regulations and have limited the ICPC's reach in important ways. Although a majority of courts have held that the Compact governs placing foster children with relatives in another state, many courts have held that the ICPC does not apply when children are sent to live with their birth parents in another state. A strong argument can be made both that the ICPC does not apply when children are sent to live with their birth parents and that it would be unconstitutional if it did. The right of parents to the care, custody, and control of their children is recognized as a fundamental liberty interest. See Troxel v. Granville, 530 U.S. 57, 65 (2000). Advocates should read the appellate case law in their jurisdiction as well as that in the receiving state on the applicability of the ICPC to parents and relatives. A list of the current case law on this issue can be found in the Appendix at the end of this chapter.

All of the courts that have addressed the ICPC's applicability to placements with birth parents have limited their analysis to the ICPC's text and purpose. No court has yet addressed the constitutionality of the statute when applied to placements with parents. When so applied, the ICPC raises serious constitutional concerns because it transfers decision-making authority from courts to child welfare agencies and allows parents to be stripped of their right to care for children based solely on a finding by the Agency that the placement is contrary to the child's interests. For a thorough analysis of these constitutional arguments, see Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of Non-Custodial Parents under the Interstate Compact on the Placement of Children, 25 Yale L. & Pol'y Rev. 63 (2006). Counsel practicing in jurisdictions that have already held that the ICPC applies to out-of-state placement with parents are encouraged to argue that the Constitution forbids such an interpretation. An ultimate appeal to the state Supreme Court should be considered when lower courts rule that the ICPC does apply in these placements. No court has yet upheld the reach of the law to such cases.

The placement of children across state lines in violation of the ICPC regulations renders many services in the receiving state unavailable. For example, there would be no Agency that would be responsible for monitoring or reporting on the placement or the child's welfare. Additionally, if the child or family was in need of therapeutic or mental health services, the parent or family could have problems accessing such services in the receiving state.

If counsel decides to argue that the Compact is inapplicable, it is also important to provide the court with sufficient reassurances that the placement will be in the child's best interest. Testimony from the proposed caregiver, along with evidence demonstrating his or her suitability (e.g., proof of employment, information regarding care of other children, pictures of where the child would reside, and criminal or child protection history), may provide the court with enough information to determine that the placement serves the child's interests. Additionally, counsel may have to clarify how the child would be monitored if the proposed placement were made and how the child would receive services, if necessary. Some courts have suggested that private child welfare agencies in the caregiver's state could perform these functions if the local public agency is unwilling. See, e.g., In re Johnny S., 40 Cal. App. 4th 969, 979, 47 Cal. Rptr. 2d, 94, 64 USLW 2399 (1995) ("If DFCS determines that monitoring by an agency in Texas is needed, it may choose to enter into an agreement for such services.").

13.04 The Home Study Process—Advocacy Suggestions

If the court determines that the ICPC applies, then counsel usually will want to try to expedite the home study process. Having a basic understanding of how the process works helps. The following steps explain this process:

1. A party suggests an out-of-state parent or relative as a placement.
2. The court orders the Agency to request an ICPC home study.
3. The caseworker prepares the paperwork and submits it to the sending state's ICPC administrative office.
4. The sending state's ICPC administrative office sends the request to the receiving state's ICPC administrative office.
5. The receiving state's ICPC administrative office sends the request to the local agency's office.
6. The receiving local agency caseworker conducts the home study and conducts necessary background checks.
7. The receiving local agency forwards the completed home study to the receiving state's ICPC administrative office.
8. The receiving state's ICPC administrative office makes a recommendation whether to accept or deny the home study based upon the "best interest" of the child.
9. The receiving state's ICPC administrative office forwards the home study decision to the sending state's ICPC administrative office.
10. The sending state's ICPC administrative office forwards the home study decision to the sending local agency.
11. The sending local agency submits the home study decision to the requesting (sending) court.
12. If the home study has been approved, the requesting court makes a decision on whether to place the child in the receiving state.
13. If the home study has been denied, the requesting court has no authority to make the placement, unless it
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