DOES INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) APPLY TO A NON-CUSTODIAL OUT OF STATE BIOLOGICAL PARENT?

Until recently, and almost consistently, the Child and Family Services Agency (CFSA) would in cases where a non-custodial non-petitioned biological parent intervenes in the neglect proceedings and seeks custody of the child – would require that parent to go through the rigorous and rather arduous task of the ICPC approval traditionally reserved for out of state placement with a foster family or an out of state pre-adoptive home.

The Supreme Court of Connecticut in an opinion published on July 19, 2012 (IN RE EMONI W. ET AL), dissected the ICPC statutory language and clearly ruled that the biological non-custodial parents are exempt from going through the ICPC approval before placement.

ICPC ‘s section 17a-175, article III (a), provides in relevant part: “[n]o sending state 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 set forth in this article and with the applicable laws of the receiving state . . . .”

The court first using the plain statutory language analyzing that biological parents are neither considered to provide “foster care” nor are considered to be an adoptive home and thus statutorily excluded.

The government there essentially put forth two arguments in support of the ICPC applying to biological parents:

1)    That § 17a-175 was intended to provide each child with “the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care”

2)    Using the entire context of the statute, placement in foster care should be interpreted as any placement by the court.  In support of the argument the government cited article I (a) of § 17a-175, which provides that “[e]ach child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.”

The court reasoned that there is a constitutionally founded presumption that parents are fit and seek what is best for their children.  Thus unless proven otherwise, placement with a biological parent would promulgate suitable environment, and a placement with qualified/appropriate individual as the statute requires.  Moreover, the agency can investigate the parent independently of the ICPC approval process and rebut the presumption of fitness.

The court also did not find persuasive the government’s second reasoning for including biological parents for the ICPC approval.  In fact, the court ruled that the statutory language clearly does not enumerate biological parents as “persons”  — and “persons” accordingly are limited to either a foster family or an adoptive home.    Specifically that “parents are presumed to be able to provide a ‘suitable environment’ for their children and to have ‘appropriate qualifications and facilities’ for raising them.”

Essentially, the court clearly and unambiguously carved out an exemption for biological parents when seeking custody of the their child out of state.  The court appropriately distinguished biological parents from foster or adoptive placement in that the biological parents are presumed to be fit, to act consistent with the best interest of their child, and held to a higher standard unless proven otherwise.

There is also an argument not memorialized or mentioned in the court’s opinion and certainly noteworthy.   That the enforcing agency should reward and persuade a fit non-custodial out of state parent who seeks to remove the child from the neglect system and to care for his or her child rather than to create more barriers and obstacles to that end– such as the ICPC approval process.

The Law Offices of David Stein handles all aspects of DC family law cases.  Contact our Offices to schedule a thorough case evaluation.

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