Family Court, Saratoga County, April 7, 2023

Peggy RR., petitioner pro se.

Andrew C. Blumenberg, Public Defender (Elizabeth Parizh of counsel), for respondent.

Kimberly Craig, Attorney for the Child.

Michelle W. Granger, County Attorney (Jacqualine Lombardo of counsel), for Saratoga County Department of Social Services, interested party.

George P. Conway, Conflict Defender (Neil Weiner of counsel), for Joel QQ., interested party.

Whereas, petitioner Peggy RR. having filed a petition under article 6 of the Family Court Act on February 21, 2023, seeking an order of custody/visitation pursuant to Family Court Act article 6 concerning the minor child, to wit: Evelyn QQ. (DOB: xx/xx/xxxx); and

Whereas, the Saratoga County Department of Social Services having filed a petition under article 10 of the Family Court Act on March 3, 2023, naming Jenell RR. as a respondent; and

Whereas, the court having previously issued a corrective temporary order of custody and parenting time on February 24, 2023; and the court having issued an amended temporary order of custody and parenting time on March 8, 2023; and[*2]

Whereas, petitioner Peggy RR. having appeared, pro se; and respondent Jenell RR. having appeared with counsel, Elizabeth Parizh, Esq. (Saratoga County Public Defender's Office); and interested party Joel QQ. having appeared with counsel, Neil Weiner, Esq. (Saratoga County Conflict Defender's Office); and Saratoga County Department of Social Services having appeared through counsel, Jacqualine Lombardo, Esq. (Saratoga County Attorney's Office) and Caseworker Taylor G. and Senior Caseworker Jordan R.; and Attorney for the Child, Kimberly Craig, Esq., having appeared; and

Whereas, it appearing that there is no legal establishment of paternity indicating that Joel QQ. is a parent of the subject child, and upon the consent of counsel for Joel QQ., that Joel{**80 Misc 3d at 716} QQ. has been removed from the caption of the proceeding herein; and

Whereas, the parties having been provided an opportunity to be heard on the applicability of the Interstate Compact on the Placement of Children (ICPC) (see generally Social Services Law § 374-a) to this case; and

For purposes of this discussion it should be noted that the following is undisputed by any of the parties to this proceeding: (a) that petitioner (maternal grandmother) filed a petition under article 6 of the Family Court Act prior to the initiation of any application or petition being filed under article 10 of the Family Court Act; (b) that the subject child was born in, and has since resided in the State of New York from the time of her birth; (c) that Peggy RR. resides and is otherwise domiciled in the State of West Virginia; (d) that the subject child has never been placed in foster care or in the custody of the Department of Social Services or any other agency; and (e) that the Department of Social Services attempted to submit a referral to the New York State Office of Children and Family Services ICPC office (NYS OCFS ICPC office) to initiate a home study under the ICPC, and the NYS OCFS ICPC office refused to accept the referral citing their position that the circumstances and procedural history of this case do not invoke the provisions of the ICPC.

The question before the court is whether the court can issue a temporary (or final) custody order providing custody to a relative who does not reside in the State of New York without invoking the provisions of the Interstate Compact on the Placement of Children where the child has not been placed in foster care. The court answers the question in the affirmative.

Petitioner and the Attorney for the Child have taken the position that the ICPC provisions do not apply to this case based on the circumstances wherein the child has never been placed in a foster care or pre-adoptive setting through the Department of Social Services or another agency. Respondent Jenell RR. and counsel for interested party Joel QQ. have taken the position that the ICPC does apply because the Department of Social Services has filed an application under article 10 of the Family Court Act, and therefore, the child by extension is "under the supervision" of the Department and thus the ICPC would apply. Notably, neither respondent Jenell RR. or respondent{**80 Misc 3d at 717} Joel QQ. object to petitioner having custody and returning to West Virginia.

"The ICPC is an agreement among the 50 States, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is 'construed as state law' in each adopting state." (Matter of D.L. v S.B., 39 NY3d 81, 85 [2022], quoting McComb v Wambaugh, 934 F2d 474, 479 [3d Cir 1991].) Notably the ICPC provides that it applies "when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption." (Matter of D.L. v S.B., [*3]39 NY3d 81, 86 [2022]; see also Social Services Law § 374-a [1] [art III].)

"The case law interpreting the ICPC is limited and is complicated by both the interplay between related and often (as is the case here) contemporaneous proceedings brought under Family Ct Act articles 6 and 10 and the overarching desire to effectuate an appropriate placement for a child—particularly in those situations where the relevant statutory scheme may be more of an impediment than an aid in achieving a placement that is consistent with the child's best interests." (Matter of Dawn N. v Schenectady County Dept. of Social Servs., 152 AD3d 135, 139-140 [3d Dept 2017] [citation omitted].)

As provided by the Court of Appeals in Matter of D.L. v S.B. (39 NY3d 81, 86 [2022]):

"The Appellate Division Departments have disagreed regarding the applicability of the ICPC to noncustodial parents who reside outside New York. The Second Department has repeatedly applied the ICPC to out-of-state noncustodial parents, holding that '[w]here the custody of a child who is under the supervision of the Commissioner [of Social Services] is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply' (Matter of Alexus M. v Jenelle F., 91 AD3d 648, 650-651 [2d Dept 2012])" (citations omitted; internal quotation marks in original decision).

The Court in D.L. went on to further state:

"By contrast, the First Department has expressly declined to follow the Second Department's interpretation of the ICPC and, instead, has held that the ICPC 'does not apply' to out-of-state noncustodial parents, reasoning that the plain language of{**80 Misc 3d at 718} the ICPC limits its application to placements in foster care or adoptive settings (Matter of Emmanuel B. [Lynette J.], 175 AD3d 49, 52 [2019], lv dismissed 34 NY3d 1036 [2019]). The Third Department has recently endorsed the First Department's approach, albeit in dicta (see Matter of David Q. v Schoharie County Dept. of Social Servs., 199 AD3d 1179, 1181 n [3d Dept 2021], lv denied 38 NY3d 901 [2022])" (Matter of D.L. v S.B., 39 NY3d 81, 86-87 [2022] [internal quotation marks in original decision]).

The Third Department decision in Matter of Dawn N. v Schenectady County Dept. of Social Servs. (152 AD3d 135 [3d Dept 2017]), although factually distinguishable,^[FN1] is instructive. In the Matter of Dawn N. v Schenectady County Dept. of Social Servs. case, the Third Department held that if a child is in placement, the court is required to comply with ICPC if the child is being sent out of state, even under a Family Court Act article 6 custody order. The court finds that the case at bar is distinguishable because Evelyn has not been in a placement at any point during the proceedings. Rather, this court finds that the provisions of the ICPC would only be invoked when, and if, the child were placed under article 10 of the Family Court Act. The court declines to adopt the [*4]position of respondent Jenell RR. and interested party Joel QQ. that any filing of any article 10 petition or other application by the Department results in the child being "under the supervision" of the Department, where the ICPC must be invoked.

Although provided in dicta, the Third Department provided in the Dawn N. case that

"[a]lthough the ICPC does not apply to '[t]he sending or bringing of a child into a receiving state by his [or her] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his [or her] guardian and leaving the child with any such relative or non-agency guardian in the receiving state' (Social Services Law § 374-a [1] [art VIII] [a]), this exception is of no aid to the grandmother here, as it is clear that DSS had custody of the subject child{**80 Misc 3d at 719} in the first instance." (Id. at 139 n 3 [emphasis added].)

To be sure, the "[ICPC] was designed to prevent States from unilaterally dumping their foster care responsibilities on other jurisdictions." (Matter of Jarrett, 230 AD2d 513, 517 [4th Dept 1997] [emphasis added and internal quotation marks omitted].) This court finds that the case at bar is not one where there has been a foster care placement, and as a result, the provisions of the Interstate Compact on the Placement of Children are not invoked.^[FN2]

Now therefore, upon the application of petitioner Peggy RR., and upon the consent of Jenell RR., and upon the consent of the Attorney for the Child, and after due consideration, and it appearing that a second amended temporary order would serve the purposes of the Family Court Act, it is

Adjudged that the petition of Peggy RR. seeking custody of Evelyn QQ. under article 6 of the Family Court Act does not invoke the Interstate Compact on the Placement of Children; and it is further

Ordered and adjudged that this court shall maintain personal and exclusive subject matter jurisdiction over the parties during the pendency of this proceeding, including the subject child, even in the event that the parties, or the child, becomes or is domiciled outside of the State of New York; and it is further

Ordered that Peggy RR. and Jenell RR. shall have joint legal custody of the minor child, to wit: Evelyn QQ. (DOB: xx/xx/xxxx); and it is further

Ordered that petitioner Peggy RR. shall have temporary primary physical custody of the minor child, to wit: Evelyn QQ. (DOB: xx/xx/xxxx); and it is further[*5]{**80 Misc 3d at 720}

Ordered that Jenell RR. shall be provided with reasonable and liberal parenting time with the minor child, to wit: Evelyn QQ. (DOB: xx/xx/xxxx), as mutually agreed upon between the parties; and it is further

Ordered that such parenting time shall be subject to any supervision requirements imposed by any order of protection issued in conjunction with the Family Court Act article 10 proceeding (docket Nos. NN-00454-23, NN-00455-23) that are in effect at the time the parenting time is being exercised; and

Ordered that Peggy RR. shall notify Jenell RR. of the residential address of the subject child within 24 hours of any residential address change of the subject child; and

Ordered that neither party shall make disparaging, demeaning or derogatory remarks about any other party to the child, or in the presence of the child, and neither party shall allow any third party to make disparaging, demeaning or derogatory remarks about any other party to the child, or in the presence of the child; and it is further

Ordered that no party shall use illegal drugs. No party shall consume alcohol to excess 24 hours prior to, or during, any parenting time with the subject child. All parties shall only use prescription medication prescribed to them by a healthcare provider and shall only use such prescription medication in accordance with the directives of the prescribing healthcare provider; and it is further

Ordered that neither party shall expose the subject child to any secondhand smoke by smoking tobacco products, cigars, or vaping in the presence of the subject child, nor allowing any third person to smoke tobacco products, cigars, or vaping in the presence of the subject child, including, but not limited to, not smoking in any vehicle(s) in which the subject child may be transported and/or the subject child's residence regardless of whether or not the subject child is present.