The ICPC provides in Article IV penalties for "illegal placement" . Article IV states that any violation of the Compact's terms constitutes a violation of the laws of both the sending and receiving states and "may be punished or subjected to penalty in either jurisdiction in accordance with its laws."⁸¹ The only specific penalty for a violation is "suspension or revocation of any license, permit, or other legal authorization held by the sending agency."⁸² As with other substantive provisions of the ICPC, the focus is on child placing agencies and the emphasis is on the actions of the sending party, not the receiving state.

The absence of any specific guidance in the ICPC regarding other sanctions for violation of the ICPC has presented courts with the challenge of determining the impact of an ICPC violation on the petition to adopt. Complicating their struggle in resolving this question is uncertainty about the extent to which the "best interest of the child" standard should be applied in deciding whether to grant or deny the petition in the face of an ICPC violation. Courts have developed various approaches and reached conflicting decisions on this issue.

Courts have tended to proceed in one of three ways when a violation of the ICPC has occurred: (1) they disregard the ICPC and grant the petition to adopt without ICPC approval; (2) they deny the petition to adopt because ICPC approval has not been obtained; or (3) they require retroactive compliance with the ICPC. A few courts have opted to grant adoption petitions without any ICPC approval whatsoever -- either prospectively or retroactively.⁸³ These courts seem to hold the view that ICPC compliance makes no difference at all in the validity and appropriateness of the adoption. On the other hand, at least two courts⁸⁴ have refused to finalize an adoption, at least partially because of a violation of the ICPC. These cases seem to suggest a view that ICPC compliance has a significant inherent value that transcends other considerations, including the best interests of the child.

Many courts have required retroactive compliance with the ICPC,⁸⁵ a trend that strongly suggests the view that a child's best interests should be paramount and that those interests are served by preserving the integrity of the adoptive family of which the child is a part. It also suggests a view that ICPC prospective compliance, in reality, makes relatively little difference in terms of the well being of the adopted child. This position has been strongly condemned by ICPC proponents who have argued that "in order to improve compliance with child protective laws and because of the superior legal force of the compact, the sounder law is that ICPC requirements should be strictly enforced."⁸⁶ Such a rule would elevate compliance with the technical -- and often ambiguous -- provisions of the ICPC above all other considerations. Such a result is well illustrated by In re Adoption/Guardianship No. 3598,⁸⁷ in which the court set aside a finalized adoption based on what the court characterized as the birth mother's and the adoptive parents' "knowing violation" of the ICPC.

In this case, involving the states of New York and Maryland, the unmarried birth mother, a New York resident, surrendered her child for adoption. She did not identify the birth father on the ICPC application for interstate adoption approval. The birth father had appeared at the hospital when the baby was born but had been turned away by the mother's family. Two days after the child's birth, he petitioned for an order declaring him to be the father of the baby. He apparently was never given notice of the court proceeding in which the mother formally surrendered the child. When the infant was two weeks old, the adoptive parents took the child home to Maryland. They later testified that their attorney told them that they had been given verbal approval by the ICPC to take the child from Maryland to New York, but, in reality, neither the New York nor the Maryland ICPC office had approved the application. One month later, the adoptive parents filed a petition for adoption and in their petition, they acknowledged that the birth father had not consented to the adoption. The court awarded the family temporary custody. The birth father, in the meantime, obtained an order declaring him to be the father of the baby, and he filed an objection to the adoption petition. Some two years later, the case was tried and the Maryland court issued a final decree of adoption. The birth father appealed.

The Maryland Court of Special Appeals concluded that the adoption must be set aside because the parties had knowingly violated the ICPC -- the birth mother by deliberately failing to identify the birth father and failing to provide him with notice of the adoption and the adoptive parents by wrongfully removing the child to Maryland, knowing they did not have ICPC approval.⁸⁸ Although the court acknowledged that the child, now four years old, had significantly bonded with the adoptive family and would be traumatized by any separation, it found that upholding the adoption would disempower the ICPC and encourage future violations. In response to the adoptive parents' pleas to recognize the best interests of the child, the court stated that the ICPC must be strictly enforced in order to protect the best interests of children everywhere.⁸⁹

The cases that have considered the appropriate sanction for a violation of the ICPC in the case of interstate adoptions often involve challenges to the adoption by a birth parent who is seeking revocation of the adoption.⁹⁰ Although some of the cases raise issues related to the validity of consent and the rights of birth fathers [issues subject to resolution through application of law other than the ICPC], the alleged violations often relate to adoptive parents' bringing a child into the receiving state without the express approval of the ICPC offices in both the sending and receiving states. These violations often take the form of failures to comply with the technical requirements of the ICPC or refusals to wait the extended periods of time required for obtaining such approvals,⁹¹ neither of which result in any harm except possibly presenting an affront to the ICPC itself. Interestingly, enforcement issues have not surfaced in relation to children in publicly supported foster care whose permanency has been denied or delayed for substantial periods of time because of ICPC mandates or administrative problems. Enforcement of the ICPC should be re-conceptualized in a manner that is consistent with the recommended changes to the scope of the Compact [limiting its application to the interstate adoptions of children in publicly supported foster care] and with the recommended changes in the substantive provisions [incorporation of a best interest standard; minimal standards for the approval process; and mandatory time lines]. Enforcement should be viewed in terms of the rights of children who are being served by the interstate approval process, not in terms of the narrow "illegal placement" concept that focuses on technical and procedural compliance and the activities of the sending party. The key issue related to enforcement should be whether, in a timely way, the receiving state makes a determination of the qualifications and suitability of prospective adoptive parents, including an assessment of the circumstances that bear on the child's safety and well being and any other factors necessary to evaluate the proposed placement. At the same time, the sending state should remain responsible for providing the receiving state with accurate and timely information about the child and the whereabouts of the family for whom the evaluation is sought.⁹²

Enforcement should take the form of financial incentives that reward timely, quality assessments and financial penalties that result when the mandatory time lines are not met, approvals are arbitrarily withheld, or evaluations are inadequate to permit the sending state to determine the appropriateness of the proposed placement. There may be any number of possible ways to structure such a system. One approach would be to develop a fee schedule whereby the sending state pays a fee to the receiving state for the evaluation, with the full fee paid for a quality timely product and a reduction in fee if time lines or minimal standards are not met. A second alternative would be a charge-back system, in which the receiving state is charged for the foster care payments made by the sending state during the additional period of time occasioned by the receiving state's delay in producing a timely and quality evaluation. Other approaches to promoting an efficient and quality interstate adoption process and enforcing standards of quality should be explored by practitioners and policy makers alike. Such a process may well reveal creative solutions to what has been a perennial problem in maximizing the effectiveness of the ICPC.

At the same time, there must be a legal avenue of enforcement that is available when, because of ICPC delay or mismanagement, the stays of children in foster care are extended by the failure to approve or disapprove an interstate adoptive placement. One approach would be to give standing to the child's foster parents and attorney and/or guardian ad litem in the sending state and to the prospective adoptive parent(s) in the receiving state to file an action against the public child welfare agency in the receiving state when there is inaction or administrative mismanagement. Relief might take the form of a specific remedy [an order that the agency make the approval determination immediately], damages [based on the emotional harm to the child caused by the undue delay], and attorney's fees. Although there may rarely be a need to resort to litigation, the knowledge that there is legal access on behalf of waiting children would create an additional incentive for timely and quality determinations.

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POLICY AND PRACTICE

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