The ICPC is a compact² that focuses on child welfare -- both foster care and adoption. Enactment of the ICPC was prompted by concerns that there were inadequate safeguards to ensure that children placed with foster and adoptive families across state lines were protected and that they received appropriate care and supervision. States were aware of their inability to exercise jurisdiction over children placed outside their geographical boundaries and, as a result, they found that they could neither determine the appropriateness of placements in other states nor ensure that children placed in other states received needed services and supervision in their new foster or adoptive homes. Drafted in 1960 and enacted initially by New York that year, all states, the District of Columbia, and the Virgin Islands have now adopted the ICPC³. In essence, the ICPC mandates that certain procedural requirements be followed by a "sending agency" to obtain the permission of a "receiving state" prior to the interstate placement of a child for purposes of foster care or adoption. The system, as designed, is one of prospective compliance to ensure appropriate interstate placements.

Article I of the ICPC sets forth the purpose and policy of the ICPC -- the cooperation of states with each other in the interstate placement of children. To that end, the Compact outlines four key objectives: determination of the suitability of the interstate placement; determination of any circumstances bearing on the protection of the child; obtaining of complete information on which to "evaluate a projected placement before it is made"; and promoting "appropriate jurisdictional arrangements for the care of the children placed."⁴ The first three objectives address the approval process that is considered critical to ensuring the safety and well being of a child placed in another state; the fourth objective addresses the promotion -- but not clarification -- of appropriate jurisdictional arrangements.

Underlying the stated purpose and policy of the ICPC is a recognition that certain custody matters regarding children must be addressed at an interstate level because they cannot be adequately regulated by a single state's law. Not explicitly stated by the ICPC, but certainly a core issue which it is designed to address, is a recognition that absent some level of interstate agreement, it is all too possible for one state to avoid its responsibility for abused and neglected children within its jurisdiction by encouraging caregiving arrangements in another state. Without an agreement that spells out roles and responsibilities, a state could avoid its legal and financial responsibility for these children and potentially create a financial burden for another state. The ICPC is therefore designed, in a positive vein, to promote interstate cooperation around these custody arrangements, but also, in an equally compelling vein, to prevent the potential financial exploitation of one state by another.⁵ This aspect of the ICPC -- clearly grounded in concerns about the respective legal and financial responsibilities of states for children over whom states have custody and financial obligations-- provides a key point in analyzing the role of the ICPC in regulating interstate adoption.

In view of the underlying rationale of the Compact, its stated purpose and policy, and, as will be discussed below, its substantive provisions and actual implementation, serious questions arise as to whether the ICPC is an appropriate regulatory system for all forms of interstate adoption. Even in those cases in which it is appropriate, there are equally troublesome issues about the extent to which true interstate cooperation has been realized and the articulated objectives -- an approval process to ensure children's welfare and the promotion of jurisdictional arrangements -- achieved.

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POLICY AND PRACTICE

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