The International Compact on the Placement of Children dates to 1975 when U.S. states and territories agreed to work together to ensure that children placed across state lines in foster care or adoption proceedings receive adequate protection and support services.
The scenario usually goes something like this. A couple marries and has children.
Then the relationship ends, and one parent gets custody and the other moves out of the state. The parent with custody later gets in trouble with the law, perhaps for neglect, such as leaving the kids alone while heading out to the casino late at night. Or maybe he or she is arrested on drug charges.
The kids are hustled into the custody of the state and placed in foster care.
The out-of-state parent, who has no legal problems and has been spending time with the children around holidays and during school vacations, ultimately gets wind of what’s happened. That parent travels to Connecticut and expects to pick up their children from state custody.
But the state typically says not so fast.
In a decision expected to have an impact on custody law across the country, the Connecticut Supreme Court has ruled that out-of-state parents no longer have to await the completion of a lengthy review process, spelled out by the Interstate Compact on the Placement of Children (ICPC), before being allowed to claim their children. The study can take months, or even years, to complete in some states.
“I think that there’s a tendency in child welfare cases that once the state gets involved, it’s difficult to persuade the state to release the child to [an out-of-state] parent even when there’s no allegations against that parent,” said Vivek S. Sankaran, a University of Michigan Law School professor who is considered a leading national expert on the ICPC. “States are overprotective of kids and their care.”
Sankaran said the recent Connecticut decision is part of a growing trend not to apply the ICPC to biological parents. He said courts in Washington state and New Hampshire recently made similar rulings. “I can’t imagine having someone tell me I can’t receive my children unless and until some state I happen to live in approves the placement,” said New London solo Don Hodgdon. “It’s horrifying.”
Hodgdon, who focuses on children’s law, was hired by a Pennsylvania man who came to get his children after officials took them out of the mother’s Connecticut home following her arrest on drug charges. The children were kept in a state-run shelter in Connecticut, which wouldn’t allow the man to take them. The man’s name was kept anonymous in court records to protect the identity of the children. The case is entitled In re Emoni W. et al.
Hodgdon fought for the father’s custody rights at a hearing in Waterford before Juvenile Judge John Driscoll in 2010. But the judge ruled that the ICPC applied to the case and a study would have to be conducted by Pennsylvania to ensure the father’s home was suitable for the children.
The ICPC dates to 1975 when U.S. states and territories agreed to work together to ensure that children placed across state lines in foster care or adoption proceedings receive adequate protection and support services. The compact establishes specific procedures for the placement of children, including the home study.
Hodgdon said the problem is that the study takes too long, given that modern technology can provide credit checks, photos of a home and payroll documents within hours. Further, he believes that many out-of -state parents are denied custody for arbitrary reasons and have no remedy or appeal.
He said the compact’s guidelines would make little sense to the average person. “What would their reaction be? I would never think I could walk into court, paying child support, say ‘I’m here,’ and then have someone say, ‘Well, we don’t know you. And in order to check you out, we’re bound by this interstate compact so we have to let the receiving state check you out.’”
Hodgdon appealed to the state Appellate Court, but by the time that case was ready to be argued roughly six months later, Pennsylvania had completed its home study. All in all, Hodgdon said the children were in Connecticut state custody for eight or nine weeks. Even when they were allowed to move to Pennsylvania with their father, Pennsylvania officials formally checked in on them for six months, a practice known as protective supervision.
The Connecticut Appellate Court declared the case moot, but Hodgdon appealed to the state Supreme Court, arguing that a situation like this could arise again. His position was helped by a dissent written by Appellate Judge Thomas Bishop, who agreed the issue was likely to resurface; even the state Attorney General’s Office, which represented the state in the dispute, agreed on that point. The high court opted to hear the case.
Though Hodgdon’s client was happy and had custody of his children, he encouraged his lawyer to continue to fight. “His words were, ‘I don’t want another parent to go through this again, and I don’t want another child to go through this again, so I want you to try to change this situation,’” said Hodgdon.
The attorney said the average time for a ICPC study is 135 days. “It was one of those cases where everyone wanted clarification,” Hodgson said. “If you look at the available data, you’re probably talking 400 cases [annually in Connecticut], half of which are denied.”
Numerous children’s interest groups, both in state and nationally, weighed in on the Connecticut debate by filing amicus briefs to the Supreme Court.
No Unfit Parents
In the majority decision, Chief Justice Chase T. Rogers sided with Hodgson. “It is reasonable to conclude,” Rogers wrote, that the compact “should not be applied to out-of-state parents in light of the constitutionally based presumptions that parents generally are fit and that their decisions are in the child’s best interests.”
She went on to note that the compact doesn’t apply in situations where children would be turned over to unfit parents. “Indeed, our statutes provide a panoply of procedures to ensure that a child under the care and supervision of the petitioner is not placed in the custody of an unfit parent and that, if a parent is granted custody, there can be continued protective supervision,” wrote Rogers.
Justices C. Ian McLachlan and Peter T. Zarella dissented but only on grounds that the issue was moot and shouldn’t have been decided by the court.
In a written statement, former state Supreme Court Justice Joette Katz, now commissioner of the state Department of Children and Families, said she was “grateful that the Supreme Court has now provided us with guidance regarding the proper statutory interpretation of the Interstate Compact. The only real implication is the additional cost to the State of Connecticut of securing out-of-state investigations since we can no longer rely on our sister states for that courtesy service” because Connecticut is not adhering to the compact in such situations.
Christine Rapillo, director of delinquency defense and child protection in the Office of the Chief Public Defender, praised the Supreme Court’s decision. Ultimately, she said, it means parents like Hodgdon’s client will no longer have to “jump through hoops” to gain custody of their children.
“Studies show that it is not good for kids to be separated from their parents and moved from place to place,” said Rapillo. The placement with the out-of-state parent isn’t necessarily permanent, and can be changed if the initial custodial parent is found to be fit to take the children back — or problems are found with the out-of-state parent. “The case still says DCF can investigate somebody,” said Rapillo “What you’re basically doing is asking a parent to be a foster parent in another state.”
Sankaran, the Michigan professor, believes other states will look at the Connecticut decision when the issue arises elsewhere.
“What the Connecticut Supreme Court decided isn’t binding on other states but I know other states are confronting this issue and will look at how other state courts have dealt with it,” said Sankaran. “The interpretation by the Supreme Court of Connecticut… is one I think other states will adopt.”•