STATE of New Jersey DIVISION OF YOUTH AND FAMILY SERVICES (DYFS) v. K.F., 353 N.J. Super. 623 (App. Div. 2002), August 13, 2002:

The goal of the Interstate Compact on the Placement of Children, N.J.S.A. 9:23-5 (ICPC), is to facilitate placements that “serve the best interests of the children, whether interstate or intrastate.” B.W. Hartfield,The Role of the Interstate Compact on the Placement of Children in Interstate Adoption, 68 Neb. L.Rev. 292, 297 (1989). To that end, the ICPC was developed to maximize the opportunities for the placement and monitoring of dependent children by removing the limitations imposed by state boundaries, increasing the flow of information between cooperating states and providing guidelines for resolving jurisdictional conflicts. Ibid.

Article II defines “placement” as “the arrangement for the care of a child in a family free or boarding home or in a childcaring agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility.” N.J.S.A. 9:23-5, art. II, subd. (d).

Article III of the ICPC provides “Conditions for Placement,” including the following: “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 set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.” N.J.S.A. 9:23-5, art. III, subd. (a).

Additionally, that article requires the sending agency to “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,” N.J.S.A. 9:23-5, art. III, subd. (b), and mandates that the child shall not be sent into the receiving state “until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.” N.J.S.A., art. III, subd. (d).

Article V of the ICPC requires the sending agency to retain jurisdiction over the child “until the child is adopted, reaches majority, becomes self-supporting, or is discharged with the concurrence of the appropriate authority in the receiving state.” The sending agency “shall continue to have financial responsibility for support and maintenance of the child during the period of the placement.” N.J.S.A. 9:23-5, art. V, subd. (a). Article V also provides that “[w]hen the sending agency is a public agency, it may enter into an agreement with an authorized public or private agency in the receiving state providing for the performance of one or more services in respect of that case by the latter as agent for the sending agency.” N.J.S.A. 9:23-5, art. V, subd. (b).

Article VIII sets forth limitations to the strictures of the ICPC. That article specifies that the ICPC shall not apply to “[t]he sending or bringing of a child into a receiving state by his [or her] parent, stepparent, 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.” N.J.S.A. 9:23-5, art VIII, subd. (a). Other provisions of the ICPC deal with penalties, delinquent children, construction and severability.

In light of the definition of “placement” and the limitations of Article VIII, the issue in this case was whether the ICPC applies when a court in this state directs that children be placed with members of their natural family in another participating state.

The Third Circuit considered the applicability of the ICPC and the limitations of Article VIII in the context of out-of-state parent placement in McComb v. Wambaugh, 934 F.2d 474 (3d Cir.1991).

In reviewing the text of the Compact, the Third Circuit focused on Articles II, III, V and VIII. Id. at 480-481. The court noted that while Article II defined placement of a child as the arrangement for the care of a child in a family, it did not define the term “family.” Id. at 480. Relying on the language of Article III, the Third Circuit described the definition of “placement” as limiting the ICPC’s application “to substitutes for parental care such as foster care or arrangements preliminary to adoption.” Ibid. The Third Circuit noted that the Association of Administrators of the Compact had adopted regulations that defined “placement” to include a situation in which a court as the sending agency arranges for a parent in another state to care for a child. Id. at 481. Addressing this dichotomy, the Third Circuit held that the regulation must yield to the statutory language. Ibid. The court determined that the regulation did not bear on the question of whether the ICPC’s definition of placement includes placement of a child with his or her natural parent. Ibid.

The Third Circuit found support for its definition of placement in Article V of the ICPC, which provides for the retention of jurisdiction over the child by the sending state. Id. at 480. The court reasoned that construing the return of a child to his or her natural parent as a placement would lead to the anomalous result that a sending state’s duty to support children would supersede the traditional duty of natural parents to support their children. Ibid.

The Third Circuit also relied on Article VIII of the ICPC to bolster its holding that the return of a child to his or her natural parent is not a “placement” within the terms of the ICPC. As stated above, Article VIII excludes placement of a child by certain natural family members with a “relative or non-agency guardian.” N.J.S.A. 9:23-5, art. VIII, subd. (a). Quoting the draftsman’s notes for the ICPC, the Third Circuit concluded that this exclusion “exempted certain close relatives… in order to protect the social and legal rights of the family because it was recognized that regulation is desirable only in the absence of adequate family control.” McComb, supra, 934 F.2d at 481 (citing Draftsman’s Notes on Interstate Compact on the Placement of Children, reprinted in R. Hunt, Obstacles to Interstate Adoption, 44 (1972)). According to the court, Article VIII implied that the term “placement” referred to placement 728 with a substitute for a child’s natural family. Ibid. (finding that the interpretation of ICPC to govern only the placement of children in substitute arrangements for parental care “avoid[ed] entanglement with the natural rights of families [and] is consistent with the limited circumstances that justify a state’s interference with family life”).

The McComb court declined to apply the ICPC because the child at issue there had been placed with his natural family and not with a substitute family. The Third Circuit held that the ICPC did not govern a sending state’s placement of children with their natural family in another state. Id. at 482.

The ICPC does not apply to relative placement and, therefore, it does not require the prior approval of the receiving state when a court in this state has decided against foster care in favor of placing children with their out-of-state maternal grandparents.

The ICPC was intended to remove, not to create, obstacles to out-of-state placements that are in the best interests of children. It would be nonsensical to use the ICPC, as DYFS suggests, to prohibit a court’s placement of children with their natural family solely because that family resides in another state.

To view the ICPC as a set of rigid rules would circumvent its goals and the court’s ability to achieve those goals. The court’s paramount duty in child welfare cases is to protect the best interest of the children. In re Guardianship of K.H.O., 161 N.J. 337, 347, 736 A.2d 1246 (1999). The overall design of the ICPC is to facilitate placements that are in the best interest of the children. N.J.S.A. 9:23-5, art. I. It is the policy of DYFS to place, whenever possible, children with relatives when those children are removed from the custody of their parents. In re E.M.B., 348 N.J.Super. 31, 34, 791 A.2d 256 (2002). To advance the goals of the ICPC and the policy of DYFS, the court must have a broad discretion to evaluate and assess a relative’s ability to care for children.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

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