The following papers were considered in the preparation of this decision: Counsel’s Memorandum of Law 1 Counsel’s Affirmation in Support of Memorandum of Law 2 AMENDED DECISION & ORDER In this private placement adoption proceeding, counsel for the petitioning adoptive parents has filed a memorandum of law and affirmation in support requesting that the court: (1) find that the Interstate Compact on the Placement of Children (ICPC) is inapplicable to the particular facts of this interstate adoption; and (2) finalize the adoption of Baby Girl A. Counsel for the adoptive parents has submitted a memorandum of law indicating that the facts referred to therein are “derived from the Affirmation of counsel, submitted with the memorandum of law.” Counsel states that on April 27, 2020, the birth mother executed a valid extrajudicial consent for a private placement adoption, an affidavit to dispense with her appearance before the court for the purpose of reaffirming her consent, and a guardianship agreement granting petitioners custody of Baby Girl A. None of these documents were made a part of the application, although they are contained within the court file. Counsel’s affirmation further provides that Baby Girl A was turned over to the petitioners in Louisiana, and that the petitioners transported Baby Girl A to New York without complying with the provisions of the ICPC. Counsel’s position is that the ICPC does not apply to this proceeding, and that the sending of Baby Girl A by her birth mother from Louisiana to her “relatives” in New York is not a violation of the ICPC. Counsel argues the petitioners are “relatives,” and that there is an exemption in the ICPC for the transfer of a child from her natural parent to certain individuals who are considered “relatives.” In support of her position that the ICPC does not apply to this proceeding, counsel states the petitioners are “relatives,” as referenced in SSL 374-a Article VII (a). Petitioner’s counsel also contends that the prospective adoptive mother has had a relationship with the birth mother for twenty-five (25) years as a neighbor and family friend. Based on this relationship, counsel asserts that the adoptive mother is a “relative”; therefore, the provisions of the ICPC do not apply to this proceeding. The ICPC is comprised of ten (10) Articles and twelve (12) Regulations. Relying on Regulation III, Paragraph 4 (56) of the ICPC, which relates to foster families and foster boarding homes, counsel asserts the definition of “relative” can be found in 18 N YCRR 443 — Certification, Approval and Supervision of Foster Family Boarding Homes. 18 NYCRR 443.1(h) defines “relative” broadly and includes neighbors and family friends. Counsel’s reliance on this statute is misplaced. The statute is applicable to “foster family boarding.” Regulation III, Paragraph 4 (56), which defines “relative,” ends with the caveat: “or as defined in state statute for the purpose of foster and or adoptive placements.” The instant proceeding is an adoptive placement. LEGAL ANALYSIS The purpose of the Interstate Compact on the Placement of Children is for the party state to cooperate with each other in the interstate placement of children. To wit: “The ICPC is an agreement among all fifty states, the District of Columbia and the United States Virgin Islands, establishing uniform legal and administrative procedures governing the interstate placement of children. Its purpose is to ensure that a suitable out of state placement is located for the subject child prior to the child being placed there. The text of this agreement has been ratified as uniform state law in all the above jurisdictions. In New York, this is codified in Social Services Law (hereinafter “SSL”) §374-a (In re Adoption of Adoptive Child R., 14 Misc. 3d 806, 808, [Queens County, Fam. Ct. 2006]).” SSL 374-a reads in pertinent part that: “[t]his compact shall not apply to: (a) [t]he sending or bringing of a child into a receiving state by his parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or non-agency guardian in the receiving state.” New York State Social Services Law and the New York State Domestic Relations Law, which contain the statutory authority for adoptions in New York State, are void of a definition for the word “relative” as it applies to adoptions and ICPC. As stated above, the ICPC is comprised of ten (10) Articles and twelve (12) Regulations. Regulation III, Paragraph 4 (56) defines “relative” as: “a birth or adoptive brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, first cousin, niece, nephew, as well as relatives of half blood or marriage and those denoted by the prefixes of grand and great, including grandparent or great grandparent, or as defined in state statute for the purpose of foster and or adoptive placements.” A search of legal authorities provides support to the fact that “relatives” are generally considered to be related by blood or consanguinity. Black’s Law Dictionary (11th ed. 2019) defines “relative” as: “A person connected with another by blood or affinity; a person who is kin with another.” “The terms ‘relatives’ and ‘relations’ in their primary sense, are broad enough to include any one connected by blood or affinity, even to the remotest degree” (In re Sobel’s Estate, 117 Misc 508,509 [Sur. Ct., New York County 1921]). The term “relative” is defined as an “individual related by affinity or consanguinity within the third degree as determined by the common law, or an individual in a step or adoptive relationship within such third degree” (In re Gamaldi, No. 807-71366-REG, 2009 WL 961417, at *12 [Bankr. E.D.N.Y. Apr. 7, 2009]; 11 USC 101 [45]). “The ICPC mandates that a child be placed in the receiving state only after the designated Compact authorities in the receiving state have approved the placement. The statute by its express terms prohibits the transfer of a child from one state to another until the placement has been approved by both the sending and receiving states’ ICPC administrators” (In re Adoption of Adoptive Child R., 14 Misc 3d 806, 809 [Fam. Ct. Queens County 2006]). The court holds that Baby Girl A’s placement in New York was not with a “relative,” not authorized, and in violation of SSL 374-a. The court must look for a remedy that is in the best interests of Baby Girl A. The petitioners have forty-five (45) days from the date of this decision and order to cure the defective transfer of the child and obtain nunc pro tunc ICPC approval. This constitutes the decision and order of the court. Dated: July 29, 2021
