Family Court, Kings County, March 13, 2019

Zachary W. Carter, Corporation Counsel, Brooklyn (Marlee Galvez of counsel), for Administration for Children's Services, petitioner.

Kreuza Ganolli, Brooklyn, for respondent mother.

Legal Aid Society, Brooklyn (Joan Ferng of counsel), Attorney for the Child.

Regine Cabane, New York City, for father, nonparty.

The question presently before the court is whether the Interstate Compact on the Placement of Children (ICPC) applies to nonrespondent parents who reside outside of New York. Review of the papers submitted by the attorney for the respondent mother Kadesha J. and the attorney for the subject child, Solai J., and the statutory and relevant case law, as well as relevant law review articles, leads to the conclusion that the ICPC does not apply to release of nonremanded children to out-of-state nonrespondent parents.

The purpose and policy of the ICPC, which is codified in Social Services Law § 374-a, is to establish cooperative procedures among the party states in the interstate "placement" of children (Social Services Law § 374-a [1], art I). The ICPC is also intended to "prevent States from unilaterally 'dumping' their foster-care responsibilities on other jurisdictions" (Matter of Shaida W., 85 NY2d 453, 459 [1995]; APHSA, ICPC FAQ's, https://aphsa.org/AAICPC/AAICPC/icpc_faq_2.aspx; see also Vivek 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 & Poly Rev 63, 63 [2006]; Matter of Williams v Glass, 245 AD2d 66, 67 [1st Dept 1997], clarified 249 AD2d 99 [1st Dept 1998]; Matter of Jarrett, 230 AD2d 513 [4th Dept 1997]).

Article II (d) of the ICPC defines "[p]lacement" in pertinent part as "the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution . . . ." By its terms, the ICPC applies only to "placement" of children in foster care, not a release of a child to his or her nonrespondent parent.

Article III of the ICPC sets forth "Conditions for Placement," and provides:

"(a) No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement{**63 Misc 3d at 824} set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.

"(b) Prior to sending, bringing or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state" (emphasis added).^[FN*]

A biological parent cannot adopt or be a foster parent to his or her own child. Thus, the conditions set forth in article III of the ICPC cannot apply to a release of a child to his or her biological parent.

Article VIII (a) of the ICPC specifically provides that "[t]his compact shall not apply to . . . [t]he sending or bringing of a child into a receiving state by his parent . . . ."

"Sending agency" is defined as a "party state, officer or employee thereof; a subdivision of a party state, . . . or other entity which sends, brings, or causes to be sent or brought any child to another party state" (Social Services Law § 374-a [1], art II [b]). "Receiving state" is defined as "the state to which a child is sent, brought, or caused to be sent or brought" (Social Services Law § 374-a [1], art II [c]).

It is apparent from the language and stated purpose and policy of the statute that the ICPC is intended to apply when a state authority has taken over the care and custody of a child and "placed" that child in foster care with a state-approved foster care agency or foster home. If that state seeks to send the child to a different state, the sending state must comply with the various procedures and requirements set forth in article III, in order that (a) "[e]ach child requiring placement shall receive the maximum opportunity to be placed in a suitable{**63 Misc 3d at 825} environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care"; (b) "[t]he appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement . . . for the protection of the child"; and (c) "the proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made" (Social Services Law § 374-a [1], art I [emphasis added]).

In practice, a sending state will submit an ICPC application to the receiving state with the available information about the proposed placement resource; the receiving state will investigate the placement resource and notify the sending state if the placement resource is an appropriate caregiver in a safe environment. This all stems from the facts that it is the child welfare authorities in the sending state who have legal custody of and responsibility for the subject child, and the child welfare authorities in the receiving state will be charged with the legal responsibility for monitoring the placement of the child if and when the child is sent. If the child welfare authorities in the initial state never assume legal care and custody of the child, if the child has not been placed in foster care, but, rather, released to a parent, the ICPC does not apply.

While there are a number of appellate court decisions which uphold the application of the ICPC to a nonrespondent out-of-state parent or relative (see e.g. Matter of Shaida W., 85 NY2d 453, 459-460 [1995]; Matter of Tumari W., 65 AD3d 1357, 1359 [2d Dept 2009]; Matter of Alexus M. v Jenelle F., 91 AD3d 648, 650 [2d Dept 2012]; Matter of Faison v Capozello, 50 AD3d 797 [2d Dept 2008]; Matter of Keanu Blue R., 292 AD2d 614 [2d Dept 2002]; Matter of Melinda D., 31 AD3d 24 [2d Dept 2006]), in each of those cases the subject child or children had been remanded to the care and custody of the child welfare agency before the out-of-state nonrespondent parent sought to have the child released to his or her care. The child welfare agency had assumed the legal responsibility for the child or children and it was that welfare entity which was operating as the "sending" agent. The ICPC was held to apply because the child was in the care and custody of the state (see Shaida W., 85 NY2d at 460):

"The official custodian of these children was petitioner, Department of Social Services of New York{**63 Misc 3d at 826} City. It authorized the children to be 'sent,' as that statutory word of art is used, to California with their grandmother. New York's Department of Social Services alone is the 'sending agency' within the meaning of the statute. When the children relocated to California, they were in the 'custody' of the New York City Department of Social Services pursuant to a Family Court order . . . . The Department of Social Services was the agency that was still responsible for their care, and it authorized the transfer in cooperation with San Diego officials. The Department of Social Services, therefore, 'sent' the children to California with their grandmother, as New York foster children, to be supervised by the San Diego Department of Social Services child welfare authorities. . . . Consequently, the Compact applies to the relocation at issue here and protects these foster children."

Once the state takes custody of the subject child, the state is responsible for the child's care and safety, and it is at that point that the ICPC is triggered. Thereafter, if Administration for Children's Services (ACS), as the agent for New York (the sending state), seeks to transfer the child to an individual in another state (the receiving state) the ICPC and its requirements are implicated. If a child is not remanded to ACS—"placed" by ACS in foster care—but, rather, is released by the court to the out-of-state nonrespondent parent, the ICPC does not apply. The court is not aware of any case in which the ICPC was held to apply to the release of a child, who had not been remanded to state custody, to an out-of-state, nonrespondent parent. The language and purpose of the ICPC do not suggest a more expansive application of the Compact.

In the present proceedings, Solai was removed from her mother's care and custody and released to her nonrespondent father. The child was never in the care and custody of ACS or a foster care agency. In these circumstances, the ICPC does not apply.