Judicial Oversight over the Interstate Placement of Foster Children: The Missing Element in Current Efforts to Reform the Interstate Compact on the Placement of Children

• Author: Vivek Sankaran
• Position: Clinical Assistant Professor of Law, University of Michigan Law School
• Pages: 385-408

JUDICIAL OVERSIGHT OVER THE INTERSTATE

PLACEMENT OF FOSTER CHILDREN: THE MISSING

ELEMENT IN CURRENT EFFORTS TO REFORM THE

INTERSTATE COMPACT ON THE PLACEMENT OF

CHILDREN

VIVEK SANKARAN*

I. INTRODUCTION

The Interstate Compa ct on the Placement of Chil dren (ICPC or

Compact), a u niform state law go verning the interstate placement of

children in foster care,1 is under attack. Policymakers, academics, and

advocates have c riticized the stat utory scheme for being un workable and

unnecessarily impeding children’s perman ent place ment with their parents

or relatives.2 Judges, frustrated with delays in the interstate placement

Copyright © 2009, Vivek S ankaran

* Clinical Assistant Professo r of Law, University of Michigan Law Schoo l.

1 4 2 U.S.C. § 671(a) (2006). See infra notes 4 –8 and accompanying text, for a brief

discussion of the ICPC.

2 See, e.g., Madelyn D. Freundlich, Reforming the In terstate Compact on the Pla cement

of Children: A New Framework for Intersta te Adoption, 4 HYBRID 15, 30–31 (1997)

(recognizing that ou tcomes for children under th e ICPC “have been at best troubling, and at

worst dire”); Juliu s Libow, The Interstate Comp act on the Placement of Chi ldren—A

Critical Analysis, 43 JUV. & FAM. C T. J. 19, 19 (1 992) (“[T]he Compact it self becomes the

problem, not the solut ion and at times endangers the w ell-being of children.”); John C. Lore

III, Protecting A bused, Neglected, and Abandoned Children: A Proposal for P rovisional

Out-of-State Kinship Placement s Pursuant to the Interstate Compact on the Placement of

Children, 40 U. MICH. J. L. REFORM 57, 57 (2006) (addressing “the critic al need for reform

of the Interstate Compact”); Vivek S. Sank aran, Perpetuating th e Impermanence o f Foster

Children: A Critica l Analysis of Efforts to Reform the Interstate Co mpact on the Placement

of Children, 40 FAM. L.Q. 435, 444 (2006) [hereinaft er Perpetuating Impermanenc e]

(“[The ICPC] has created a system in which fos ter children await ing interstate p lacements

languish in temporary placements indefinitely.”); Vivek S. Sankaran, Ou t of State an d Out

of Luck: The Treatment of Non-Custodial Parents Under the In terstate Comp act on the

Placement of Children, 25 YALE L. & POL’Y REV. 63, 67 (2006) [hereinafter Out of L uck]

(“[T]he current applicat ion of the ICPC violates th e constitutional and cus todial rights of

parents and increases th e likelihood that children will unn ecessarily remain in foster care.”);

Letter from Center for Fami ly Representation to J erry Friedman (Mar. 10, 2008) (on file

with author).

386 CAPITAL UNIV ERSITY LAW REVIEW [38:385

process, have found creative ways to avoid strict co mpliance wit h the law.3

In 2006, the federal g overnment i ntervened and enacted legis lation to

expedite the completion of interstate home studies and mandate that ea ch

state assess its interstate placement procedu res.4 Recently, st ate child

welfare agencies, u nder the leadershi p of the Ameri can Public Human

Services Associati on, drafted a proposal to reform the ICPC, which is

currently being intro duced in state legis latures across th e country.5 A

consensus has emerged that the cu rrent system i s flawed and need s a

massive overhaul .6 Preserving the status quo is not an option.

Yet, no tably absent from the cu rrent debate on reforming the ICPC is

any consideration of creatin g judicial oversight over the int erstate

placement process, which has been absent since it was drafted in 1960.

Under the Compact, the child welfare agency in the state in which the

proposed caretaker resides has the exclusi ve authority over placement

3 See, e.g., N.J . Div. of Youth and Family Servs. v . K.F., 803 A.2d 721, 728–29 (N.J.

Super. Ct. Ap p. Div. 2002) ( finding the ICPC in applicable to placemen ts of foster children

with relatives); Cry stal A. v. Lisa B., 818 N.Y.S.2d 443, 447 (N.Y. Sup. Ct. 2006) (holding

the ICPC inapplicable w here grandparents filed a separate custody action regardin g foster

children); State of Fla., Dep’t of Health and Human Se rvs. v. Thornton, 39 6 S.E.2d 475,

481 (W. Va. 1990) (holding that the best interests of the child trumps strict compliance with

the Comp act); see also ARK. SUPREME COURT AD HOC COMMITTE E ON FOSTER CARE AND

ADOPTION, ARKANSAS COURT IMPROVEMENT INTERSTATE PLACEMENT OF FOSTER CHI LDREN

ASSESSMENT RE PORT 41, 63 (2008) [hereinafter ARK. COURT IMPROVEMENT REPORT],

available at http://ww w.abanet.org/child/rclji/placement_asses sments/AR_icpc_assessment.

pdf (reporting that 72% of judg es have entered a custody order for an out-of-state p lacement

and terminated jurisdictio n to avoid compliance with the ICPC).

4 § 671(a).

5 See AM. PUB. HUMAN SERVS. ASS’N, ASS’N OF ADMINI STRATORS OF THE INTERSTATE

COMPACT ON THE PLACEMENT OF CHILDREN, PROPOSED LEGISLAT IVE LANGUAGE FOR THE

NEW ICPC, http://www.aphsa.o rg/Policy/ICPC-REWRITE/Proposed%20 Legslative%20

Language/PROPOSED_LE GISLATIVE_LANGUAGE0 9.pdf [hereinafter NEW ICPC ]. See

Association of Administrators of the Interstate Compact on the Placement of Children,

http://icpc.aphsa.org/Home /home_news.asp (las t visited Aug. 27, 2009), for more

information about efforts of the American Public Human Servi ces Association to reform the

Compact.

6 See Erik Eckholm, Waits Plague Trans fers of C hildren to Relatives’ Care, N.Y.

TIMES, June 27, 200 8, at A11; Megan O’Matz & Sally Kestin, Foster Kid s Get Lost in Out-

of-State Paperwork, ORLANDO SENTINEL, June 16, 2002, at B5; Megan O’Matz & Sally

Kestin, Chi ldren Lost D espite Pact Am ong States; Cumbersome Placement Process F ails,

S. FLA. SUN-SENTINEL , June 9, 2002, at 1A; Rita Price , Couple Fight s for Abused

Grandson, COLUMBUS DISPATCH, Aug. 17 , 2009, at A1.