Exempts placements of children with relatives or other suitable persons from the provisions of the interstate compact on the placement of children

Summary of provisions

Section 1 amends Family Court Act § 1017(2)(a)(i) to state that when the family court grants an order of custody or guardianship to a non-respon- dent parent or other relative or a suitable unrelated person pursuant to Family Court Act § 1055-b, compliance with the ICPC, as codified in Social Services Law § 374-a, shall not be required.

Section 2 amends Family Court Act § 1055-b in a like manner by adding a new subdivision (f) which states that when the court issues an order granting custody of guardianship pursuant to § 1055-d, compliance with the ICPC shall not be required.

Section 3 is the enacting clause

Existing law

The ICPC itself is consistent with this legislation. Some older New York appellate cases imposed the ICPC compliance rule removed by this legis- lation, but more recent case law is consistent with this legislation.

Justification

In many instances, a child who would otherwise remain in foster care with no guarantee and sometimes no hope of permanency can be safely released to an out-of-state parent or other relative or other suitable person who has not been charged with acts of child neglect or abuse. Unfortunately, for many years, New York courts held that the release of a child to the custody of an out-of-state caretaker is governed by the ICPC. As a result, the reunification of out-of-state parents and their children often has been postponed for lengthy periods because of bureau- cratic delay, and sometimes blocked entirely because of unreasonable objections raised by authorities in other states. The ICPC includes no means of formally challenging another state's decision.

The legal landscape has shifted dramatically in recent years. ICPC Regu- lation 3(2)(a)(3) requires ICPC compliance in cases involving placements with parents and relatives when a parent or relative is not making the

placement. However, ICPC compliance is not required "(w)hen the court places the child with a parent from whom the child was not removed, and the court has no evidence that the parent is unfit, does not seek any evidence from the receiving state that the parent is either fit or unfit, and the court relinquishes jurisdiction over the child immediate- ly upon placement with the parent." Regulation 3(3)(a). Moreover, high courts in other states have held that the ICPC by its terms applies only to placements for foster care and adoption, and that any extension of the ICPC, via ICPC regulations, to cover placements with parents or other relatives is ineffective. See, e.g., In re Emoni W., 48 A.3d 1 (Conn. 2012); In re Alexis 0., 959 A.2d 176 (N.H. 2008); Dept. of Human Services v. Huff, 65 S.W.3d 880 (Ark. 2002).

Current New York case law also leads to the conclusion that the ICPC does not apply when a child is released to a caretaker's permanent custody in a custody or guardianship proceeding, rather than placed for foster care or for adoption. The Family Court Act now provides that the court may award custody or guardianship pursuant to Article Six of the Family Court Act to a parent or other relative or other suitable person at disposition in an Article Ten proceeding or in an Article Ten-A permanency proceeding, and thereby terminate the court's jurisdiction. FCA §§ 1055-b, 1089-a. This termination of jurisdiction comports nicely with the spirit of Compact Regulation 3(3)(a), and, indeed, compliance with the ICPC is not required when custody is awarded to an out-of-state caretaker and the court does not retain jurisdiction. In re Louis N., 98 A.D.3d 918 (1st Dept. 2012) (no error where, upon consolidated disposi- tional hearing in custody and abuse/neglect proceedings, court awarded custody to out-of-state grandmother without compliance with Compact; ICPC does not apply where custody ordered under FCA Article Six and FCA § 1055-b(a)). As noted by the First Department in Louis P., a well-known authority already had opined that the ICPC do es not apply when a custo- dy or guardianship order is issued under Article Six. See Merril Sobie, Practice Commentary, Family Court Act § 651.

Accordingly, the Family Court Act should be amended to bring it in line with recent court decisions in New York, and with what appears to be a developing consensus around the country that the ICPC does not apply in these circumstances. For many years, child welfare professionals in New York, not to mention children and relatives kept apart by ICPC-related bureaucratic roadblocks, have lamented the unnecessary application of the ICPC in cases in which it was never meant to apply. It is critical that the Legislature end this practice throughout New York State.

Legislative history

None

Fiscal implications

Minimal

Effective date

This act shall take effect immediately.