The ICPC and the Best Interests of Children in the Public Child Welfare System
The goal for children for whom public child welfare agencies have legal and financial responsibility should be permanency with families who can provide security, stability, love and nurturance and who understand and can respond effectively to the special needs that many of these children have. To meet that goal, the ICPC should have in place an approval process that, in a timely manner, determines the suitability of the prospective adoptive family and, particularly, any circumstances that could affect the protection of the child, and that provides to the sending state a complete evaluation on which to base an assessment of the appropriateness of the projected placement.34
As with other aspects of the ICPC, the approval process as outlined by the Compact has created barriers to the achievement of these aims. Article III prohibits any interstate foster care or adoptive placement on the part of any sending agency:
unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.35
Problems arise in four areas: (1) inadequate attention to the requirements that the receiving state must meet in determining and issuing approval for interstate adoptive placements; (2) confusion regarding compliance with state law in addition to ICPC requirements; (3) jurisdictional uncertainty; and (4) untimely and unresponsive implementation of the approval process.
1. Inadequate Attention to Receiving State Mandates
The ICPC is quite clear as to the mandates governing the sending agency's notice to the receiving state of a potential interstate placement. The notice must be in writing; it must be directed to "the appropriate public authorities" in the receiving state; and it must contain: the child's name and date and place of birth, the identity and address of the parents or legal guardians, the name and address of the "person, agency or institution to or with which the sending agency proposes to send, bring or place the child", "a full statement of the reasons for the proposed placement", and "evidence of the authority pursuant to which the placement is proposed to be made".36 The receiving state may request additional or supporting information that it considers necessary "to carry out the purpose and policy" of the ICPC.37
By contrast, the Compact mandates very little with regard to the approval process that the receiving state must utilize, despite the explicit objectives regarding interstate placement approvals outlined in Article I. The only stated requirement is that the approval be "in writing".38 Perhaps most striking and unsettling is the Compact's language regarding the receiving state's decision to approve the proposed placement. The ICPC does not set as the standard for the approval that the proposed placement is in the child's best interests. The ICPC merely provides that the receiving state's communication to the sending agency be "to the effect that the proposed placement does not appear to be contrary to the interests of the child."39
The lack of specificity regarding the approval process suggests a surprising inattention to the explicit core function of the ICPC. The purpose of the Compact is, as stated in Article I, to assure that children "receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care."40 The ICPC, however, in its substantive provisions, fails to set even minimal standards for the assessment of suitability, appropriateness, and desirability of care. The outcomes for children, as a result, have been at best, troubling and at worst, dire.
An example of a particularly poor outcome as a result of this inattention is seen in the case of In re Paula G.,41 a case that does not involve an interstate adoptive placement but which nevertheless illustrates the realities of the approval process in the context of a child's best interests. In this case, the public child welfare agency in Rhode Island learned that a child in state legal custody had been moved by her mother to Florida and was living with her mother's boyfriend. Rhode Island initiated an ICPC request with the Florida authorities, and the Florida office, upon finding that the boyfriend's home was inadequate and inappropriate, denied approval for the child's ongoing placement in the state. Florida, however, took the position that because approval would not be granted, Florida would assume no responsibility for the child's safety and welfare. The public authorities, despite the knowledge that the child was already in state protective custody in Rhode Island and was in an inappropriate setting within their own state, nonetheless saw no need to take further action. A Rhode Island Family Court justice then entered an order that the child be temporarily placed in the home of the boyfriend that the Florida authorities had found to be an inadequate caregiver. The Rhode Island child welfare agency continued to object to the placement, but the child nonetheless remained in Florida until the boyfriend's home was severely damaged and became uninhabitable. At this point, the child was returned to Rhode Island where she entered a group home.
The case illustrates a number of issues related to the ICPC that suggest that the best interests of children are not the focal point for the ICPC decision-making process. The Rhode Island Supreme Court, in its review of the circumstances of this case, appropriately focused on the impropriety of the Rhode Island Family Court justice's entry of an order for a placement that did not have Florida's approval. The rules created by the ICPC were found to be violated by the action of the Family Court justice - - but no violation was noted with regard to the decision by the Florida authorities to do nothing when the child's placement in that state was found to be inappropriate. Nor was there censure for the inaction that continued until a disaster destroyed the home and required that the public authorities intervene. Considerations other than the best interests of the child clearly drove the decision making process.
A key needed change in the ICPC is the addition of an explicit "best interest" standard that requires receiving states to utilize an approval process that ensures that the Article I objectives are met in the case of each child for whom an interstate adoption is sought: determination of the qualifications and suitability of prospective adoptive parents; assessment of the circumstances, with particular attention to the protection of the child; and obtaining complete information on which to evaluate the projected placement.42 Minimal standards for the approval process should be incorporated into the Compact, and concerns about violations of the ICPC -- traditionally focused on the improper "sending" of children into another state, as discussed below -- should be directed to the failure of states to provide quality services as part of the approval process. Receiving states must be held accountable for outcomes -- both in terms of the substantive quality of the work being done on behalf of children and in terms of the timeliness of their response, an issue discussed below.
2. Confusion regarding Compliance with State Law
Adding to the difficulties associated with the ICPC application in relation to interstate adoptions of children in foster care is the confusion regarding the relationship between the ICPC and state law governing the adoption of children. The ICPC states that compliance is required with the laws of the receiving state only43 while the position of the Secretariat of the ICPC is that there must be compliance with the laws of the receiving state and the sending state.44
Article III requires that the sending agency comply "with each and every requirement" of the ICPC and "with the applicable laws of the receiving state governing the placement of children therein."45 This mandated compliance with the laws of the receiving state recognizes that each state's law contains procedures designed to ensure that prospective adoptive families are able to provide desirable homes for children. It, however, fails to take into account that certain aspects of adoption law -- particularly in the areas of voluntary relinquishment and consent to adoption and/or involuntary termination of parental rights -- may be more appropriately addressed by the laws of the sending state where the birth parent resides and is physically present at the time the decision is made to free the child for adoption.
The Secretariat of the ICPC has addressed this issue by taking the position that the ICPC, irrespective of its explicit language, requires compliance with the laws of the sending state and the laws of the receiving state.46 Consequently, in actual practice, compact administrators approve placements only if there is compliance with the laws of both the sending and receiving states. This position imposes two sets of laws -- which may or may not be identical or even complementary -- on each interstate adoptive placement, furthering complicating an already cumbersome process. Some courts have questioned the validity of the Secretariat's position and held, consistent with the express language of the Compact, that compliance must be only with the laws of the receiving state.47
The complexity of imposing the laws of both the sending and receiving states -- and the poor outcomes that can result from such a requirement -- are well illustrated by In Re Adoption No. 10087.48 In this case, the Maryland appellate court considered an adoption made directly by a mother in Virginia to a family in Maryland, facilitated by an attorney. The prospective adoptive parents had notified the Virginia and Maryland ICPC offices of the impending adoption but Virginia -- the sending state -- refused to give approval because the adoptive parents declined to provide information required by Virginia. The required form was to be completed by the biological mother and to contain the names and addresses of the adoptive parents. Both the biological parent and the adoptive parents, however, already had agreed not to disclose their identities to one another. Although Maryland had all necessary paperwork -- that is, all the requirements of the receiving state were met -- it nevertheless refused to act until it received a notice of approval from Virginia. The adoptive parents transported the newborn to Maryland, knowing that they did not have ICPC approval, and the next day notified both states that they had custody of the baby. When the adoptive parents filed their adoption petition in a Maryland court, the court dismissed the petition solely on the basis of failure to comply with the ICPC. After a Court of Special Appeals affirmed the dismissal of the petition, the adoptive family appealed to the Maryland Court of Appeals. At that juncture -- two years from the time the adoptive family assumed custody of the child -- the court reversed the dismissal of the petition.
Particularly noteworthy was the court's recognition that despite the underlying objectives of the Compact, neither ICPC office had contacted the adoptive family during the two year period to assess the child's placement. Given the fact that the Maryland ICPC office was aware of the child's presence in its jurisdiction without ICPC approval, the court stated that "the best interest of the child dictates that noncompliance with the ICPC in transporting a child into the state should be carefully investigated at the earliest opportunity, not ignored."49 What the court did not state, but is evident in the case, is that the bureaucratic insistence on compliance with the requirements of both the sending and receiving states overrode other important considerations in the case -- including any concerns about the well being of the child. Although this case involved a direct placement by a birth parent, its lessons apply even more significantly to interstate adoptive placements of children in foster care -- children whose histories include abuse and neglect and whose safety and well being with new adoptive families should be of paramount importance.
There are obvious difficulties when a legislative act -- the ICPC -- explicitly states one rule of law and a non-judicial entity -- in this case, the Association, acting through its Secretariat -- construes that act in an entirely different manner.50 In this case, the result in neither instance is satisfactory. If the ICPC were reconceptualized to apply only to the interstate adoptive placements of children in publicly supported foster care, the law of the sending state should control on issues related to birth parent rights, and the law of the receiving state should control on all other adoption related issues. If, for example, the child is legally free for adoption as a result of voluntary relinquishment or involuntary termination of parental rights in relation to both parents -- the more likely and the preferred arrangement -- the law of the sending state should determine the validity of the relinquishment or termination and the law of the receiving state should govern the procedures regarding the assessment of the adoptive family and the finalization of the adoption. In those rare cases in which the rights of only one parent have been terminated either voluntarily or involuntarily, the sending state should retain the responsibility to apply its own laws to terminate the rights of the remaining parent.51 Such an approach would obviate the need to apply potentially conflicting state laws on the same matter and presumably expedite the adoption process. As observed by one commentator, it is not in children's best interests to "insist that the laws of both the sending and receiving state be followed in every detail. Without some flexibility in choosing the appropriate rule of law for different aspects of an adoption proceeding, the purported commitment of the ICPC to protecting the welfare of children threatens to become a nullity."52
3. Jurisdictional Uncertainty
Article I of the ICPC states that one of the key objectives of the Compact is that interstate placements of children be "to the end that . . . appropriate jurisdictional arrangements for the care of children will be promoted."53 Article V sets forth the rules for "retention of jurisdiction".54 It states that the "sending agency" retains jurisdiction as to "all matters in relation to the custody, supervision, care, treatment and disposition of the child as it would have had if the child remained in the sending agency's state until the child is adopted . . . ."55 The sending agency also has the power to mandate the return of the child or the transfer of the child to another location.56 Importantly, the sending agency continues to "have financial responsibility for the support and maintenance of the child during the period of placement."57 It is important to note that Article V discusses jurisdiction in a manner that does not comply with the usual understanding of jurisdiction in the legal sense -- that is, "jurisdiction" as the authority by which courts and judicial officers take and decide cases.58 A "sending agency", as defined in the ICPC, cannot have jurisdiction in the traditional sense over any matter; a "sending agency", however, can and, under the ICPC, does have specified responsibilities for a child who is placed in another state. The intent of Article V, therefore, cannot be seen as specifying jurisdictional authority; it must instead be viewed as specifying the respective roles and responsibilities of the sending agency and the receiving state.59 From this perspective, there are two issues that have furthered confounded the usefulness of the ICPC.
The first issue relates to the confusion caused by the mandated retention of "jurisdiction" by the "sending agency" and the inclusion of birth parents within the scope of "sending agency". Even the most ardent proponents of ICPC application to birth parents find that applying the "sending agency" definition to a biological parent in the Article V sense is not workable. Mitchell and Rosenbaum, for example, state that a biological parent who has relinquished a child and consented to the adoption does not remain -- as Article V would mandate -- financially responsible for the child until the child's adoption is finalized.60 This construction is certainly sensible, but it also creates a situation in which Article V -- despite its absolute language -- applies some of the time but not always -- once again raising confusion about the actual nature of the ICPC mandates.
The second issue is the ongoing conflict related to state jurisdiction in interstate child placement matters. This conflict is based on an uncertainty regarding the applicability of the ICPC or the Uniform Child Custody Jurisdiction Act [UCCJA] in the case of interstate adoptive placements. This conflict focuses on jurisdiction in the legal sense -- a determination of which state's court has the authority to make decisions related to children in interstate adoptive placements. Proponents of the ICPC believe that the UCCJA applies only to "custody disputes" and should not be applied in the case of interstate adoptions. They argue that in those cases in which the ICPC and UCCJA conflict, the ICPC must prevail because an interstate compact is superior in status to any state statute with which it is inconsistent.61 Legal experts disagree. Hollinger, for example, argues that the UCCJA sets out the overriding jurisdictional rules and when conflicts occur, the UCCJA must prevail over the ICPC.62
Courts have struggled with the appropriate jurisdictional rules to be applied in interstate adoption -- the ICPC or the UCCJA. Illustrative of the problems are the multiple opinions issued by Arizona courts as the case of J.D.S. v. Superior Court,63 later entitled J.D.S. v. Franks,64 proceeded through appeal. In this case, jurisdictional conflicts arose when a birth mother in Arizona placed her child for adoption with a couple in Florida, despite the objections of the birth father. The mother did not supply any information on the birth father. She signed the relinquishment and on the day the ICPC application was filed, turned her infant over to an attorney who was facilitating the adoption. Later that day, the mother contacted the attorney, stating that she had changed her mind and wanted the child returned. The attorney refused. The following day, the Arizona ICPC administrator approved the interstate placement and the child was transferred to the adoptive couple who then returned to Florida and filed the adoption petition. One week later, the birth mother notified the birth father of the events, and he immediately filed for custody in Arizona. In the course of this litigation, three differing opinions were issued by the courts that considered the case.
The Trial Court. The trial court considered the question whether the state of Arizona -- where the birth parents resided -- or the state of Florida -- where the child physically resided -- had jurisdiction over the case. The trial court held that the ICPC -- not the UCCJA applied -- and that Florida had jurisdiction over the child.65
The three analyses reflect the confusion surrounding jurisdiction over interstate adoption. Although it is clear that application of the UCCJA can produce different results, it is also clear that the introduction of the ICPC into the mix only further confounds matters.
The Court of Appeals. The birth father appealed and the Arizona Court of Appeals held that the UCCJA -- not the ICPC -- was the appropriate law to resolve the jurisdictional conflict. That court held that the ICPC does not apply to resolve jurisdictional conflicts but instead speaks to whether an interstate placement is appropriate. Applying the UCCJA, the court held that Arizona had jurisdiction to decide the case.66
The Supreme Court of Arizona. In the final and binding opinion issued in the case, the Supreme Court of Arizona agreed with the court of appeals that the UCCJA was the governing law, but upon applying the UCCJA, held that Florida, not Arizona, had jurisdiction.67
The jurisdictional problems plaguing interstate placements are further illustrated by the extremely troubling case, Marion Cty. Dept. Of Public Welfare v. Beard.68 In that case, jurisdiction was disputed in the context of significant issues regarding the child's best interests. Two children were placed in foster care in Indiana and then, after the mother completed the requirements in her service plan, the children were returned to her by the Indiana public child welfare agency. Shortly thereafter, one of the children died from a skull fracture, and the mother pleaded guilty to involuntary manslaughter. During the mother's probation, the remaining child was placed with her aunt and uncle in Tennessee. The mother, three years after this placement was made, requested that the uncle be required to petition for guardianship of the child and, in the event that he did not, that the child be returned to Indiana. Despite the fact that the Indiana authorities were satisfied with the child's placement in Tennessee for the preceding three years, the agency, noting that the uncle had not applied for guardianship, obtained an order from the Indiana county court ordering the child's return to Indiana for determination of her best interests. In point of fact, the uncle had petitioned for guardianship, and never received notice of the Indiana county court's order. The Tennessee court in which the uncle's petition was pending refused to release the child for return to Indiana until it could decide the jurisdictional question. Subsequently, the Tennessee court determined that it had jurisdiction and awarded guardianship of the child to her uncle.
Over the ensuing two years, Indiana and Tennessee battled over jurisdiction while the child remained in Tennessee. Ultimately, the Indiana county court issued an order that the child be returned to Indiana and, at the mother's request, ordered the public child welfare agency to pay the legal expenses the mother had incurred in seeking to have the child returned to her. The court agreed with the mother that the Indiana child welfare agency, under the ICPC, had jurisdiction and therefore, financial responsibility. It rejected the public child welfare agency's contention that under the UCCJA, Tennessee had jurisdiction.
The county court's orders were appealed and the Indiana Court of Appeals considered the jurisdictional question. The court attempted to resolve the dilemma by reading the UCCJA and the ICPC together "to produce a harmonious system of legislation."69 The court's analysis was as follows: under the ICPC, Indiana retained jurisdiction as the sending agency and therefore, Tennessee lacked jurisdiction to order the uncle's guardianship; there was error in failing to give notice to the uncle of the Indiana county court's order that the child be returned to Indiana-- notice to which he was entitled under Indiana law; the uncle in Tennessee was in the best position to provide information relevant to the child's best interests -- a concept recognized under the UCCJA as relevant to the determination of which state has jurisdiction; and therefore, the order requiring the child to be returned to Indiana required reversal.
Quite aside from the unsettling practice issues,70 this case, like the Arizona cases, illustrates the complexity that is unnecessarily created by attempts to incorporate ICPC directives purportedly addressing "jurisdiction" into an analysis of a true jurisdictional issue. While courts may reach different outcomes when they apply the UCCJA, as illustrated in the Arizona case, the UCCJA, nevertheless, is designed to specifically address the jurisdictional issues inherent in interstate child custody matters.71 The ICPC clearly is not so designed, and, in reality, it introduces extraneous considerations that only further confound jurisdictional determinations.
Jurisdictional issues related to interstate adoptive placements should be resolved solely by application of UCCJA principles. The ICPC should be amended so that references to "jurisdiction" are deleted, and language is utilized that relates to ongoing responsibility for children prior to finalization of adoption. Article I(d) of the ICPC should be modified to delete reference to "appropriate jurisdictional arrangements"72 and to state, instead, that the Compact is designed to clarify and enforce responsibility for the ongoing support of children in care. Article V should be entitled "Responsibility for Children in Interstate Placement" and Article V(a) should read:
The sending state shall retain responsibility for the child and shall determine all matters in relation to the supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending state, until the child is adopted, becomes self-supporting, or is discharged with the concurrence of the appropriate authority in the receiving state. Such responsibility, subject to the provisions of the Uniform Child Custody Jurisdiction Act, shall also include the power to effect or cause the return of the child or the child's transfer to another location. The sending state shall continue to have financial responsibility for support and maintenance of the child during the period of placement. Nothing contained herein shall effect the jurisdiction of the receiving state to deal with an act of delinquency or crime committed therein.
4. Untimely and Unresponsive Implementation of the Approval Process
Perhaps the most consistently troublesome aspect of the ICPC is the untimely and unresponsive implementation of the approval process. The difficulties in attaining the cooperative system contemplated by the Compact are exacerbated by implementation of the ICPC on a state by state basis. Timeliness and responsiveness have been critical deficits in the system so that even if the ICPC were appropriately construed to encompass only public agency-directed adoptions of children in the state's custody and were unambiguous in its application, the purpose and policy of the Compact would be thwarted by the current realities of its implementation.
Timeliness and responsiveness to the needs of children awaiting adoption are not identified by the ICPC as core objectives of the system which the Compact creates. The omission, however, has not shielded it from intense criticism. Courts have criticized the bureaucratic mishandling that has impeded adoptive placements,73 and in some cases, expressed dismay at the ICPC's failure to keep abreast of state law bearing on ICPC interstate placement approvals.74 In other instances, the delays due to cumbersome processes have led to frustrations and efforts to work around the ICPC simply to achieve a needed adoptive placement for a child in foster care.75 The issue of serious and protracted delays and administrative mismanagement in adhering to the procedural mandates of the ICPC have become a key basis for questioning the value of the ICPC as a regulatory tool.
The enormity of the implementation problems associated with the ICPC is best illustrated by examples drawn from actual case files.76 The following illustrate some of the key problem areas, including what is perhaps the most frequently cited obstacle, delay in conducting and completing evaluations, as well as administrative mismanagement, complexities associated with the public-private agency relationship, and policies that fail to take into account children's individualized needs.
Delay in Conducting and Completing Evaluations.
Case #1. In 1993, State A placed two sisters with their grandmother in State B after obtaining State B's approval for the foster care placement. In 1994, State A decided to pursue adoption with the grandmother and requested that State B conduct an adoption home study. More than one year later, State B still had not responded. State A sent two letters, requesting information on the status of the request, but received no response. Six months later, it was discovered that State A had sent the incorrect request forms. One month later, State A sent the correct forms and finally, in November 1995, the home study was initiated. In January 1996, State B decided that it could not approve the home because there was no copy of the divorce decree from the step-grandparent's first marriage. Four months later, the step grandfather found a copy of the divorce decree. On April 24, 1996 -- more than two years after the request for adoption approval for a family already approved for foster care -- State B approved the home as an adoptive resource. The adoption was finalized in September 1996.
Case #2. State A placed the child Sally, in state custody and legally free for adoption, with an approved pre-adoptive family in State A. Just before finalizing the adoption, a State A caseworker notified birth family members about the planned adoption and asked them to contact her if they wished to adopt the child. It is unclear how and why this decision was made at this point in the planning for the child. The child's paternal grandmother in State B replied that she was interested in adopting the child. State A -- though questioning the suitability of the grandmother as a permanent care giver for Sally -- requested an adoption home study by State B. Six months passed with no determination. The reason given was that the grandmother had not yet obtained the psychological evaluation that State A requested and State B consequently required.
Case #3. State A identified the Smith family, residents of State A, as a prospective adoptive family for Joey, a child in state custody. The Smith family was approved as an adoptive resource by a licensed private adoption agency in State A. After the placement but before the finalization of adoption, the Smiths moved to State B. The ICPC offices of State A and State B required that the Smiths undergo a second home study in State B in order to be approved for Joey's adoption -- even though the adoption, if the family had remained in State A, was ready to be finalized. State B then announced that the family would have to wait at least 8 months before State B could even start the home study.
Case #4. Mary was freed for adoption in March 1995 and in May 1995 State A requested an adoption home study of the paternal grandparents who lived in State B. State B declined to proceed with the study until State A provided a financial and medical plan to support the child should the placement be approved. State B required the plan because it had a policy that prohibited relatives from receiving Aid to Families with Dependent Children for children in the custody of another state. State A supplied the plan in June 1995. In February 1996, State A realized that it had received no information regarding the status of the study and requested an update. State B reported, in response to that letter, that the home study had been assigned to a caseworker in March 1996 -- a full nine months from receipt of the required financial and medical plan. In June 1996, State A again requested information from State B on the status of the home study. As of October 1996, State A had received no response.
Case #1. State A requested approval of a placement of two siblings with relatives in State B. State B approved the placement, and Johnny was placed in November 1994 and Jimmy in December 1995. State B agreed to supervise these placements and provide State A with progress reports. In March 1996, the children were freed for adoption, and in April 1996, State A requested an adoption home study of the relatives. Shortly thereafter, State B [where the children were residing] wrote State A, requesting information on the children's current status. State A advised State B that State B should have the relevant information: the children were in State B and State B had been [allegedly] supervising the placement. State A discovered at that point that State B had never forwarded a progress report to State A on the children's status. State B then assigned the home study required by the ICPC, but as of October 1996, State B had provided no information to State A.
Complexities in the Relationship between Public and Private Agencies
Case #1. In December 1994, State A identified a family in State B as a pre- adoptive family for Tommy. A licensed private adoption agency in State B conducted a home study and approved the adoptive placement. In May 1995, State A placed Tommy with the family and asked State B to supervise the placement for six months. State B refused because a private agency -- and not the public agency -- had conducted the home study. State A suggested that State B conduct its own home study and then monitor the placement, offering to place Tommy elsewhere during the home study process. State B refused.
Case #2. Meg was freed for adoption in February 1996, and State A sent a request for an adoption home study to State B in March 1996. In July 1996, State B notified State A that the family under consideration had had a home study completed by a licensed private agency in State B and that State B's policy prohibited a potential adoptive family from being "affiliated with" more than one agency. State B, therefore, refused to conduct the home study. State B further stated that if the placement were to be approved on the basis of the home study conducted by the private agency, State B would not provide the post-placement supervision. State B told State A that State A would have to pay the private agency for those services. In August 1996, the ICPC office in State A, uncertain of how to proceed under these circumstances, notified the child's worker in State A of this development and requested guidance. As of October 1996, the worker had not responded as to the request.
Policy Mandates that Override Individualized Assessments of Children's Needs
Case #1. While in State A, Ms. Jones was a foster parent, approved by State A, for Jimmy. Jimmy had entered foster care in 1992, had four psychiatric hospitalizations, and had a history of fire-setting and aggressive and self-abusive behaviors. Jimmy was legally freed for adoption in March 1995 and State A decided to pursue the adoption with Ms. Jones because she had shown a strong ability to meet Jimmy's needs when she was his foster parent and she was very interested in adopting him. Ms. Jones had moved to State B and State A requested an adoption home study by State B. State B conducted the home study and refused to approve the placement because Ms. Jones was a homosexual. State B had a regulation that prohibited placements with homosexuals.
These case studies illustrate the extraordinary delays and other barriers that the ICPC poses to interstate adoption. Efforts to address these barriers, however, have been quite limited.77
Serious reform of the ICPC requires, in addition to the substantive changes already outlined, significant improvements in the implementation of the ICPC approval process. First, thirty working days from the date of the receiving state's receipt of the request to the date of the approval or denial78 should be a mandatory time line. The time frame should apply to all children in the foster care system for whom interstate placements are sought. Any attempt to create a "special priority" category within the population of children in foster care who are awaiting adoption -- as suggested by some -- should be rejected.79 Each child in foster care awaiting an interstate placement has special priority by virtue of the disruptions and trauma in his or her life and the overwhelming need the child has for stability, security and safety. While triaging of children in foster care may be appealing in light of the current inefficiencies and undue complexities in the system, it neither serves the best interests of children nor solves the inherent problems of a heavily bureaucratic structure that is not performing in a credible manner. By contrast, if the ICPC were reformed to eliminate coverage of direct adoptive placements by parents and licensed private agency assisted adoptions, the system would be able to focus its resources on meeting a thirty working day standard of efficiency for all children in foster care -- the children that the system is designed to serve. Efficiency is far more likely to be achieved under a mandated time frame that sets a standard of accountability for all children than under a policy that attempts to determine which children should be served in a relatively better way.
Second, the ICPC approval process should be critically examined and redesigned so that the current technocratic process is replaced by an individualized assessment based on children's best interests. The case examples demonstrate the troubling degree to which adoptions currently are denied or significantly delayed because of administrative mismanagement, unreasonably complex documentation requirements, and mechanistic application of regulatory mandates that fail to consider the circumstances of the individual child. These factors -- among many others -- have significantly contributed to the delays consistently experienced in ICPC implementation while in no way improving the information gathered in the evaluation process, enhancing home studies, or expanding services that respond to the needs of children and families. The goal of enhanced efficiency must be combined with a goal of quality individualized assessments that focus on those issues that are relevant to determining whether a prospective adoptive family is appropriate for a particular child.
Third, the administrative structure of the ICPC should be examined in light of quality management principles. The strengths and weaknesses of the current structure should be considered prior to adding new procedures and processes and pressing other systems, such as the judicial system, to take on additional responsibilities in relation to interstate placements.80 A reconsideration of the structure and the respective roles and responsibilities of the ICPC administrators, local offices, and other system components may well reveal opportunities to streamline the current processes in a way that achieves significant efficiencies.
POLICY AND PRACTICE
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