The Proper Scope of the ICPC
As with most statutory frameworks, the ICPC begins with definitions of some of its key terms -- "child", "sending agency", "receiving state" and "placement"6 -- definitions that should provide clarity about the scope of the Compact. In the context of adoption, however, these definitions have created confusion and led to significant dispute over the extent of the Compact's reach. Equally at issue is the appropriateness of applying these definitions to the three major types of interstate adoption -- public-agency directed adoptions of children in the custody of a governmental agency at the state or county level; licensed private agency-assisted adoptions of children not in state or county custody; and adoptive placements of children by their parent(s). Although the definitions of "child"7 and "receiving state"8 are relatively clear and undisputed, the two remaining definitions set forth in Article II of the ICPC -- "sending agency" and "placement" -- when applied to interstate adoption, are at best problematic and at worst, detrimental to the best interests of children.
The Definition of "Sending Agency."
Perhaps most troublesome is the ICPC's use and definition of the term "sending agency". Although the overall scheme of the Compact refers to a "receiving state", it does not utilize the concept of a "sending state". Instead, the ICPC refers to a "sending agency" which it defines as:
a party state, officer, or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency or other entity which sends, brings, or causes to be sent or brought any child to another party state.9
This extremely broad definition includes virtually any individual or entity that plays any role in "sending" or "causing to be sent" a child into another state, potentially reaching multiple parties in any one interstate placement. The breadth of the "sending agency" definition is particularly important because it subjects a broad range of individuals and entities to additional mandates of the ICPC: the burden of compliance is put on the "sending agency", with penalties for non-compliance as discussed below, and the ICPC requires that the "sending agency" retain jurisdiction over the child who is placed until the adoption is finalized.10
"Sending agency", as a structural concept in the ICPC, has minimal impact in the context of foster care because the possible "sending agencies" are clearly identifiable and generally limited in number. In virtually every instance, interstate foster care placements involve children who are in the custody of a state or county child welfare agency and/or family or juvenile court. Rarely is there a question of the application of the ICPC in relation to whether the initiating party is a "sending agency" within the meaning and purpose of the ICPC. The "sending agency" is a governmental entity with legal and financial responsibility for children and the activities are clearly within the purpose of the ICPC. In nearly every case, the "sending agency" is actually a "sending state".
In the context of adoption, however, the term "sending agency" impacts a broad range of circumstances that constitute interstate adoption -- whether or not a state has custody or financial responsibility for the child. ICPC regulation is appropriate in cases of adoptive placements by a state or county child welfare agency and/or court of jurisdiction involving children in foster care who are being placed with adoptive families in another state -- for the same reasons that it is appropriate for interstate foster care placements. While problematic from other standpoints, as discussed below, the ICPC is a sound regulatory response designed to enhance interstate cooperation and avert interstate exploitation.11 Such is not the case, however, for direct adoptive placements by parents who are initiating placements on their own or with the help of an intermediary such as an attorney or physician -- or for adoptions assisted by licensed private agencies that involve children who are not in publicly supported foster care.
Direct Adoptive Placements and the "Sending Agency" Definition. The ICPC generally considers a parent to be a "sending agency" when she places her child, often a newborn, for adoption across state lines. Parents, under the current prevailing construction of the Compact, are required to conform to the ICPC provisions in the same manner as a governmental state or county child welfare agency or court seeking to adoptively place a child in foster care. Such a broad application of the ICPC produces some bewildering results. Leading proponents of the ICPC,12 for example, argue that the following scenarios are subject to the ICPC:
A pregnant woman leaves State A for the purpose of placing baby with an agency in State B. The baby is born in State B and relinquished to the agency. The mother returns to State A.
In none of these instances is there an issue regarding interstate cooperation, potential interstate exploitation, or jurisdictional authority. In each instance, the receiving state [State B] would have in place adoption and licensing laws that address the determination of the suitability of the adoptive family.14 There is no need to impose additional ICPC mandates15 and, given the extraordinary time delays and other implementation problems of the ICPC, discussed below, it is likely to be against children's best interests to do so.
A pregnant woman in State A delivers her child in State B and relinquishes the child to prospective adoptive parents living in State B. The mother returns to State A.
Prospective adoptive parents from State B enter State A for the purpose of taking custody of a child that has been born and relinquished in State A. The adoptive parents then return to State B with the child.13
Adoptions Assisted by Licensed Private Agencies and the "Sending Agency" Definition. The same issues related to lack of fit with the Compact's rationale apply when the definition of "sending agency" is applied to licensed private agencies that assist in both the sending and receiving states with the adoption of children who are not in the custody of a governmental entity. As with adoptive placements by birth parents, these adoptions involve children for whom no state has any legal or financial responsibility. The ICPC, as it does with adoptive placements by birth parents, layers a complex regulatory scheme on a process for which there is no possibility of state-to-state misconduct. Importantly, the Compact inappropriately extends interstate adoption regulation to a matter that is adequately addressed by the law of a single state --through the substantive state law governing adoption and licensing law that regulates agency practice.
Further Confusion As a Result of Attempts to Exempt Certain Adoptions. The ICPC mandate that includes virtually any person and entity within the definition of "sending agency" is inappropriate in its scope, but, at least, very clear in its meaning -- if it represented the whole thrust of the law. Unfortunately, the ICPC complicates matters by attempting to exempt from its reach some adoptive placements initiated by parents, certain relatives and guardians. Article VIII of the ICPC provides that:
This compact shall not apply to: (a) The sending or bringing of a child into a receiving state by his parent, step-parent, 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.16
Apparently intended to limit its own reach in those cases in which the ICPC should not intervene, this Article has created uncertainty about which placements by parties ordinarily considered "sending agencies" are subject to the Compact. Efforts to apply this exemption have led to a number of questions about the applicability of the ICPC. In practice, the exemption has tended to create distinctions that not only are difficult to comprehend but which further complicate any attempt to predict ICPC applicability in future cases.
The impact of the Article VIII exemption can be seen in direct placements by parents and in adoptions assisted by licensed private agencies. Article VIII provides that if both the "sending agency" and recipient of the child have certain specified familial relationships with the child, the ICPC does not apply. This rule effectively means that ICPC approval is not needed by a parent in State A who sends a child into State B to be adopted by an adult relative who has not had any prior contact with the child or, in the worst case scenario, has maltreated the child. A parent from State A, however, who delivers her baby in State B and relinquishes the child for adoption to a couple in State B who has been approved by a licensed private adoption agency in that state must comply with the Compact. The distinction is apparently based on the ICPC's view that the biological connection in the specified relationships is significant enough standing alone to bypass the ICPC protections believed necessary in virtually every other interstate adoption. Ironically, the presumption of appropriateness in the placement decision because of the biological relationship exists only in the context of the receiving relative. The birth parent -- who has the most significant biological relationship with the child -- is, on her or his own, accorded no such presumption of fitness in decision making.
The Article VIII exemption is particularly problematic in its references to actions by "guardians". Because "guardian" is not defined in the Compact, it is unclear who or what qualifies as a guardian for ICPC purposes. Notwithstanding this oversight, Article VIII states that ICPC approval is not needed when the sending party is a guardian and the child is sent either to a relative specified in Article VIII or to a "non-agency guardian". Assuming that a sending state's law or policy would permit an agency to act as guardian, the guardian agency could avoid compliance with the ICPC by sending the child to a relative, irrespective of the relative's former relationship with the child, or to another person who simultaneously is serving as the child's guardian -- a highly improbable situation.
Recognizing the particular lack of clarity in connection with the references to "guardian" in Article VIII, the Association of Administrators of the Interstate Compact on the Placement of Children ["the Association"] and the American Public Welfare Association, acting as the Association's Secretariat,17 issued Regulation III to outline those aspects of parenting or guardianship that must be met to avoid compliance with the ICPC. Regulation III states:
Article VIII(a) of this Compact applies only to the sending or bringing of a child into a receiving state to a parent or other specified individual by a parent or other specified individual whose full legal right to plan for the child has been established by law at a time prior to initiation of the placement arrangement, and has not been voluntarily terminated or diminished or severed by the action or order of any Court.18
Regulation III has confused rather than clarified. One court, for example, concluded that the same standard that applies to a sending guardian -- the full legal right to plan for a child established prior to the initiation of the placement -- must also apply to a non- agency guardian who receives a child.19 This interpretation requires equivalent legal rights to plan for the child on the part of two parties in two different states -- a highly unlikely situation. The fact that at least one court has given Regulation III such a narrow construction suggests that any purported exception to ICPC applicability may have little relevance in actual practice. Even after the exemption attempt in Article VIII and the clarification attempt in Regulation III, the ICPC is likely to be held to apply to all interstate adoption cases -- only with much confusion and uncertainty added.
The Courts and the Interpretations of "Sending Agency". Courts have evidenced the same confusion about the reach of the ICPC as practitioners who attempt to comply with the Compact. For example, several courts have held that the ICPC does not apply to adoptive placements by birth parents.20 Other courts have insisted that because the definition of "sending agency" includes "person", the ICPC must apply to birth parents.21 These differing interpretations accentuate the difficulties the ICPC poses to all parties concerned. If courts are unable to reach consensus regarding the scope of the ICPC, those attempting to comply with it face ongoing uncertainty. The safer route has been to assume that all cases of interstate adoption are within the Compact's reach -- a result that has proven to be less than optimal for the children affected by it.
When courts find every form of interstate adoption subject to the ICPC, poor results are evident. Some of the more troubling outcomes are associated with holdings that birth parents are "sending agencies" within the meaning of the ICPC. In Stancil v. Brock22, for example, the North Carolina Court of Appeals relied upon the "sending agency" definition -- which it interpreted to include birth parents -- and broadened the right of birth parents to revoke consent to the adoption of their child. In this case, birth parents in Kentucky agreed to place their child for adoption with a couple in North Carolina. The birth parents initiated an ICPC request through the Kentucky office and executed a consent to adoption that conformed with the laws of the receiving state, North Carolina. The prospective adoptive parents traveled to Kentucky when the child was born; took physical custody of the child; returned to North Carolina; and filed a petition for adoption in North Carolina. Subsequently, the birth parents filed with the North Carolina court a petition to dismiss the adoptive parents' petition to adopt and to revoke their consent to adoption.
The North Carolina court ruled that the birth parents were a "sending agency" and in an interpretation inconsistent even with that of the Association, held that the birth parents retained jurisdiction over the child until the adoption was finalized.23 Having such jurisdiction, the birth parents were empowered to demand return of the child to Kentucky. By relying on the jurisdictional provisions of the ICPC to grant the birth parents the right to demand return of the child, the court permitted the birth parents to subvert state adoption law on the finality of relinquishment and consent to adoption. This result not only undermines the stated purpose of the ICPC -- to promote interstate cooperation in adoption -- but poses a serious question regarding the use of the ICPC to disrupt approved adoptive placements and the stability and security to which children are entitled.
The Definition of "Placement"
"Placement" -- the second troublesome definition by virtue of its lack of clarity -- means, for purposes of the ICPC :
the arrangement for the care of a child in a family free or boarding home or in a child-caring 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.24
Terms within the definition such as "family free" and "boarding home" are not defined in the Compact. "Family free" apparently refers to a family home in which there is no charge for the child's care and the child is provided with "the care which children usually receive from their parents as part of the process of upbringing,"25 and "boarding home" is apparently one in which there is a charge for the child's care. Both terms clearly refer to foster care. It is noteworthy that the definition of "placement" contains no reference to adoption, suggesting that the ICPC was drafted more from concerns about interstate foster care arrangements than adoption.
The omission of a reference to adoption in the definitional section of the ICPC understandably led a number of courts in the 1980s to question whether the ICPC had any application to pre-adoptive placements.26 The issue ultimately was resolved in the affirmative through a reading of the definition of "placement" with the language of Article III of the Compact which requires ICPC approval for "placement in foster care or as a preliminary to a possible adoption."27 The Article III language is of particular interest because it tends to suggest an intent to regulate only those amorphous activities that could conceivably lead to adoption rather than those activities clearly intended as permanent [not preliminary] steps to ensure an actual [not possible] adoption.
As with other aspects of the ICPC, the ambiguity of the definition has led to confusion and to attempts to capture virtually any interstate activity within the scope of the Compact. As with the definition of "sending agency," the appropriateness of extending the reach of the ICPC to adoptive "placements" by birth parents has been in issue. One court held that private adoptions initiated by birth parents -- when the relinquishment is irrevocable and the adoptive placement consensual -- is a "positive, not potential act" and therefore, not within the scope of the ICPC's definition of placement as "a preliminary to a possible adoption."28 This interpretation, although a more reasoned construction of the ICPC, is, however, in the minority. Most courts29 and the Association30 have determined -- consistent with what appears to be the prevailing approach of giving the broadest possible interpretation to the scope of the Compact -- that "placement" includes direct adoptive placements by parents across state lines.
The Association has expanded even further the reach of the ICPC by concluding that the definition of "placement" also includes those situations in which a family moves from one state to another after the adoptive placement has occurred but before finalization of the adoption.31 This interpretation transforms what starts as an intrastate adoption into an interstate "placement" [despite the fact that the child has already been "placed"] subject to the provisions of the ICPC. Despite the likely understanding of all concerned that the adoptive placement of the child with the family is permanent, lacking only the finalization decree, the ICPC views the arrangement as merely a "preliminary" step to a "possible" adoption. The rationale for including these adoptions within the scope of the Compact -- and subjecting the arrangements to the complexities and time delays of the ICPC process -- is unclear. The inclusion becomes understandable only from the perspective that there is an overriding interest in extending ICPC application to the largest possible pool of adoptions.
Summary and Recommendations
The broad scope of the ICPC as suggested by the definitions of "sending agency" and "placement" are not sound in terms of the actual purpose of the Compact, nor does this broad scope promote the best interests of children placed for adoption across state lines. There is no legitimate policy or practice rationale for extending the reach of the ICPC to adoptive placements by birth parents or to adoptions assisted by licensed private agencies that involve children who are not in the custody of a state or county governmental entity. The application of the ICPC to these adoptions -- without adding any protections for children or other benefits to the process -- creates additional bureaucratic demands; prolonged time delays in authorizing the placement; confusion; and, in many instances, extremely poor outcomes for children.
The ICPC should be limited to interstate adoptive placements by public authorities of children who are the legal and/or financial responsibility of a governmental entity. Such a limitation is entirely consistent with the underlying purpose of the Compact, and it focuses the application of the ICPC -- and the resources allocated to its implementation and enforcement -- to those cases in which interstate regulation is appropriate and a necessary tool. To achieve that end, the concept of "sending agency" should be eliminated from the Compact and a new concept -- that of "sending state" -- substituted. "Sending state" should be defined as a governmental entity that has legal and/or financial responsibility for children subject to the interstate placement. Through a modification of the current definition of "sending agency", "sending state" could be defined as:
a party state, officer, or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; any of which sends, brings, or causes to be sent or brought any child to another party state.
Corresponding changes should then be made in the definition of "receiving state" to delete all references to placement by "private persons" and "private agencies."32
Similarly, "placement" should be redefined to incorporate "the arrangement for adoption of a child" and the ambiguous language in Article III, "a preliminary to a possible adoption",33 eliminated entirely. That change would clarify that the ICPC applies to interstate adoption, and when read with the definition of "sending state", would provide practitioners and courts alike with an understanding of the public-agency directed nature of the adoptions being regulated.
This approach would permit a focus on the issues related to the effective and efficient implementation of the Compact to serve the best interests of children who are in publicly supported foster care -- children for whom adoption is the pathway to permanent families who will provide them with the love, stability and security to which they are entitled. As the following section outlines, the ICPC, as currently construed and administered, largely has failed to provide these children with the permanency which they need and deserve. As is the case with the scope of the ICPC, the substantive provisions of the ICPC and its implementation require significant changes to better serve children in the public child welfare system.
POLICY AND PRACTICE
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