Endnotes
This article, in shortened form, was published in Hybrid: The University of Pennsylvania Journal of Law and Social Change in 1996.
1. See e.g., Bernadette W. Hartfield, The Role of the Interstate Compact on the Placement of Children in Interstate Adoption, 68 NEB. L. REV. 292 (1989).
2. A compact is "[a]n agreement or contract between persons, nations, or states. Commonly applied to working agreements between and among states concerning matters of mutual concern." BLACK'S LAW DICTIONARY 281 (6th ed. 1990).
3. The genesis of the Interstate Compact on the Placement of Children can be traced to an informal group of social service administrators on the East Coast who met in the 1950s to study problems in the interstate placement of children in foster care. Subsequently, the Compact was drafted under the auspices of the New York State Legislative Committee on Interstate Cooperation. A twelve state conference approved the Compact in 1960. Following New York's lead, other states enacted the Compact over the ensuing decades. See Hartfield, supra note 1 at 295; THE SECRETARIAT TO THE ASSOCIATION OF ADMINISTRATORS OF THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN, GUIDE TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN 3 (1990) [hereinafter GUIDE TO THE INTERSTATE COMPACT].
4. INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN art. I (Am. Pub. Welfare Ass'n) [hereinafter ICPC].
5. Some proponents of the ICPC state this goal more starkly. See e.g., Mitchell Wendell and Betsey R. Rosenbaum, Interstate Adoptions: The Interstate Compact on the Placement of Children, in ADOPTION LAW AND PRACTICE Appendix 3A at '3-A.03 (Joan H. Hollinger ed. 1995) (writing that one of the purposes of the ICPC is "to reduce the possibility of children without suitable persons or institutions to receive them being dumped into other states").
6. See ICPC, supra note 4, art. II.
7. A "child" is defined as, "a person who, by reason of minority, is legally subject to parental, guardianship or similar control." Id.
8. A "receiving state" is defined as, "the state to which a child is sent, brought, or caused to be sent or brought, whether by public authority or private persons or agencies, and whether for placement with state or local public authorities or for placement with private agencies or persons." Id., art. II(c).
9. Id., art. II(b).
10. See id., art. V.
11. See e.g., Newman v. Worcester County Department of Social Services, 659 N.E.2d 593 (Ind. Ct. App. 1995) in which the ICPC provided a mechanism for cooperative efforts between Maryland and Indiana. In this case, the preadoptive parents, with whom three siblings were placed, requested the removal of two of the siblings from their home -- which was done -- but then refused to obtain a psychological evaluation as part of the home study for the adoption of the third sibling. Both states concurred that the child should not remain in the home. Maryland, the sending state, obtained a court order mandating the return of the child, and Indiana enforced the order. When the preadoptive parents attempted to have the order dismissed, the Indiana court utilized the ICPC as the basis for Maryland's authority to require the return of the child.
12. See generally Wendell and Rosenbaum, supra note 5.
13. Id. Appendix ' 3-A.09 at 3A-11 through 3A-12.
14. Questions may arise about the extent to which any one state's law sufficiently protects children and appropriately regulates adoption. There is considerable variation in states' adoption laws with widely varying approaches to relinquishment and consent, to the legality of independent adoption without agency involvement, and to the practice of adoption by for-profit agencies. Some proponents of the ICPC have argued that ICPC oversight is necessary in the case of states they view as having deficiencies in their adoption laws. Although it may be a correct observation that some states' laws provide minimal, or possibly inadequate, protections, those laws nevertheless bind intrastate adoptions in those states and adoption decrees issued by any such state are entitled to full faith and credit in other states. See William M. Schur, Adoption Procedure, in ADOPTION LAW AND PRACTICE '402[6] at 4-47 through 4-51 (Joan H. Hollinger ed. 1995).
The issue is whether the ICPC, as a vehicle for promoting interstate coordination as stated in Article I, should be used to subject those states deemed deficient by those who administer the ICPC to procedures and standards that vary from those states' laws. Arguably, efforts to advance the quality of adoption law should take the form of a uniform adoption act or model adoption legislation, and not direction from a non-legislative, non-judicial entity such as the ICPC administrative structure.
15. There are valid concerns about interstate "baby brokering", that is, unethical practices that, in effect, provide infants in exchange for substantial sums of money. Some have argued that the ICPC functions to prevent such practices. There is, however, little indication that the ICPC, as substantively structured and as implemented, can or does play such a role. The extent and nature of "baby brokering" practices should be carefully assessed, the need for more effective monitoring and enforcement determined, and the most appropriate mechanisms to respond to this issue created or enhanced.
16. ICPC, supra note 4, art. VIII(a).
17. The responsibilities of the Secretariat include coordinating ICPC activities at the national level, record keeping, compiling and disseminating data, maintaining the Compact Administrators' Manual, and providing technical assistance. Additionally, the Secretariat provides advisory opinion to compact administrators which are then included in the Compact Administrators' Manual. Hartfield, supra note 1, at 301.
18. AMERICAN PUBLIC WELFARE ASSOCIATION, THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN: COMPACT ADMINISTRATORS' MANUAL at 1.23 (Regulation III(c))(1982) [hereinafter COMPACT ADMINISTRATORS' MANUAL].
19. See e.g., In the Matter of Adoption of Baby "E", 427 N.Y.S.2d 705, 708 (N.Y. Fam. Ct. 1980)(concluding that "a non-agency guardian who receives the child must meet the same standards as the one who places the child.")
20. See e.g., In re Adoption of MM, 652 P.2d 974, 981 (Wyo. 1982); In re Adoption of Baby Boy W, 701 S.W.2d 534, 542 (Mo. Ct. App. 1985).
21. See e.g., Broyles v. Ashworth, 782 S.W.2d 31 (Tex. App. 1989); Cornhusker Christian Children's Home v. Department of Social Services, 429 N.W.2d 359, 362 (Neb. 1988).
22. 425 S.E.2d 446 (N.C. Ct. App. 1993).
23. The court focused on the jurisdictional provisions of the ICPC which refer to the ongoing financial responsibility of the "sending agency" for the child until the adoption in the receiving state is finalized. The Association does not consider birth parents to be "sending agencies" in the jurisdictional [ie, financial obligation] sense. Unlike other sending agencies, birth parents do not have responsibility for the financial support of the child pending finalization of the adoption. See Wendell and Rosenbaum, supra note 5, at 3A-10 through 3A-11.
24. ICPC, supra note 4, art. II(d).
25. COMPACT ADMINISTRATORS' MANUAL, supra note 19, at 2.2 (Compact Provisions, An Interpretative Commentary); Hartfield, supra note 1, at 298.
26. See Hartfield, supra note 1, at 313.
27. ICPC, supra note 4, art. III(b) (emphasis added).
28. In re Adoption of M.M., 652 P.2d 974, 981 (Wyo. 1982).
29. See e.g., In re Adoption/Guardianship No. 3598 in the Circuit Court for Harford County, 675 A.2d 170 (1995); In re Baby Girl, 850 S.W.2d 64 (Mo. Banc 1993); In re Adoption of C.L.W., 467 So.2d 1106 (Fla. Dist. Ct. App. 1985); In re Adoption of Baby "E", 427 N.Y.S.2d 705 (Fam. Ct. 1980).
30. See Hartfield, supra note 1 at 314; COMPACT ADMINISTRATORS' MANUAL, supra note 18 at 2.36 (Opinions of Interest).
31. COMPACT ADMINISTRATORS' MANUAL, supra note 18 at 1.20 (Regulation I).
32. "Receiving state" would be defined as "the state to which a child is sent, brought, or caused to be sent or brought by public authorities and for placement with state or local public authorities." Compare current definition of "receiving state", supra note 8.
33. ICPC, supra note 4, art. III(a).
34. Id. art. I.
35. Id. art. III(a).
36. Id. art. III(b).
37. Id. art. III(c).
38. Id. art. III(d).
39. Id.
40. Id. art. I(a).
41. 672 A.2d 872 (R.I. 1996).
42. See ICPC, supra note 4, art. I(a)-(c). Implicit in this standard but outside the scope of the ICPC would be the expectation that the public authorities, based on their state-mandated child protection responsibilities, would intervene upon discovering that a child is in an inadequate, inappropriate and/or dangerous situation.
43. See id. art. III(a).
44. COMPACT ADMINISTRATORS' MANUAL, supra note 18 at 3.67 (Secretariat Opinion 37 (April 7, 1977) and 2.2-2.3 (Compact Provisions, An Interpretive Commentary).
45. ICPC, supra note 4, art. III(a).
46. COMPACT ADMINISTRATORS' MANUAL, supra note 18 at 3.67 (Secretariat Opinion 37 (April 7, 1977) and 2.2-2.3 (Compact Provisions, An Interpretive Commentary).
47. See e.g., In the Matter of the Male Child born July 15, 1985 to LC, 718 P.2d 660 (Mont. 1986). See also Hartfield, supra note 1, at 317.
48. 597 A.2d 456 (Md. 1991).
49. Id. at 463.
50. Secretariat Opinions do not have the force of law, but courts often cite them as persuasive authority on issues related to the ICPC. Hartfield, supra note 1, at 301.
51. It seems preferable that the rights of both parents be legally resolved prior to the interstate adoptive placement. When the rights of both the birth mother and birth father have been voluntarily relinquished or involuntarily terminated, the placement is at less legal risk. Additionally, the sending state is likely to accord the matter a greater sense of urgency if the status of both birth parents' rights must be resolved prior to placement.
52. Joan H. Hollinger, Interstate Adoptions: The Interstate Compact on the Placement of Children, in ADOPTION LAW AND PRACTICE, Appendix 3-A at 3A-12 (Joan Hollinger ed., Supp. 1995).
53. ICPC, supra note 4, art. I(d).
54. Id. art. V.
55. Id. art. V(a).
56. Id.
57. Id.
58. BLACK'S LAW DICTIONARY 853 (6th ed. 1990).
59. See, e.g., In re Zachariah K., 6 Cal. App.4th 1025, 8 Cal. Rptr.2d 423 (1992) (holding that the ICPC's conferring of "jurisdiction" on sending agencies is not tantamount to a grant of judicial authority and does not empower a court to exercise jurisdiction).
60. See Wendell and Rosenbaum, supra note 5, '3-A.08. This construction provides additional support for the position that birth parents should not be included within the scope of "sending agency."
61. See id. at Appendix '3.A.11 at 3A-16. The authors cite no judicial authority for this proposition, and research has revealed none.
62. See Joan H. Hollinger, The Uniform Adoption Act: Reporter's Ruminations, 30 FAM. LAW Q. 345, 369 (1996).
63. 893 P.2d 749 (Ariz. Ct. App. 1994).
64. 893 P.2d 732 (Ariz. 1995).
65. See J.D.S. v. Superior Court, 893 P.2d 749, 752 (Ariz. Ct. App. 1994).
66. See id. at 753.
67. See J.D.S. v. Franks, 893 P.2d 732, 743 (Ariz. 1995).
68. 616 N.E.2d 763 (Ind. Ct. App. 1993).
69. Id. at 768.
70. It is difficult to understand how this case evolved to the point at which the appellate court became involved. Among the key practice issues is why neither voluntary relinquishment nor termination of parental rights was pursued in relation to the mother, particularly in light of the fact that her children had previously been in foster care and were returned to her, and that she was responsible for the death of one of her children. The mother was apparently given the power, some three years after the child returned to foster care for the second time and after the death of her sibling at her mother's hands, to place conditions on the child's placement with her uncle. The agency appeared willing to disrupt a three-year placement with which it had been entirely satisfied. Allowing the mother to exercise such influence in the process precipitated a two-year court battle, leaving the child in a state of uncertainty and a stable placement in jeopardy.
71. The UCCJA does not expressly include adoptions within its definition of "custody determination" or "custody proceeding" although many courts have ruled that it does indeed apply to adoptions. Courts have recognized the importance of the UCCJA's goal of having child custody proceedings heard in the forum with the closest connections to and the most significant evidence about the prospective adoptive family. The UCCJA preference for a "home state" basis for jurisdiction, however, has been problematic in the context of many interstate adoptions and the majority of infant adoptions because the child generally has not lived with the adoptive parents from birth. As discussed by Hollinger, courts have often resorted to rather convoluted analyses to fit adoptions within UCCJA categories. The Uniform Adoption Act [UAA], recently proposed by the National Conference of Commissioners on Uniform State Laws, would change the UCCJA "home state" provision to include the state in which a child has lived with a birth parent or a prospective adoptive parent for the requisite six or more consecutive months or, if an infant, since shortly after birth. For those adoptions that do not occur "soon after birth," the UAA permits adoptive parents to file in the state where they have lived for six or more months even if the child was recently placed with them. See Hollinger, supra note 64, at 369-370.
72. ICPC, supra note 4, art. I(d).
73. See Hollinger, supra note 54 at 3A-11. See also, In re Adoption No. 10087, 597 A.2d 456 (Md. App. 1991).
74. See e.g., In re Adoption of Male Infant A., 578 N.Y.S.2d 988 (N.Y. Fam. Ct. 1991).
75. See e.g., In re Eli F., 260 Cal. Rptr 453 (1989). In this case, a social worker submitted a report to the California court with jurisdiction over a child in foster care, describing futile attempts to obtain information from the ICPC authorities in another state about the suitability of placement in the aunt's home. She wrote, "[u]nfortunately, ICPC is a cumbersome process and there has been no communication as yet . . . regarding this matter."
76. The events in each case example are factual. The names assigned to children and families are solely for the purpose of enhancing the readability of the cases.
77. See e.g., Memorandum from Mike Chapman, President of the Association and Sam Ashdown, Chairperson of the Judicial Relations Committee to the Joint Committee on ICPC Improvement on the Joint Committee's Recommendations to Improve the Placement of ICPC Children (May 14, 1996)(on file with author). The Joint Committee on ICPC Improvement is comprised of representatives from the National Council of Juvenile and Family Court Judges, the National Association of Public Child Welfare Administrators, and the Association of Administrators of the Interstate Compact on the Placement of Children. The Committee's efforts have focused on improving the delays in processing ICPC requests. The report of the Committee sets forth certain recommendations that "may help reduce delays": improved interstate communication, including the use of facsimile transmissions and judge to judge communication when there has been undue delay; a national format for ICPC home studies that could be "used for some cases"; new methods at the local level to handle ICPC request processing; a national computer data network for state ICPC offices; and continuation of the Joint Committee as a national forum on the ICPC. The report does not recommend enforceable time frames for the approval process. It outlines, instead, a special "priority placement" designation that could be developed and implemented by sending courts. The recommendation is that procedures be developed to allow sending courts to find, for some children, that a placement must be made on an expedited basis to meet the special needs of a child and note this special designation in the court order. This designation would then give the child priority over other children whose placement approvals are pending.
78. See GUIDE TO THE INTERSTATE COMPACT, supra note 2 at 7 (suggesting thirty working days as "the maximum recommended processing time from the date the receiving state compact office receives the notice of the proposed placement until the placement is approved or denied.")
79. See supra note 77.
80. See supra note 77.
81. ICPC, supra note 4, art. IV.
82. Id.
83. See e.g., In the Adoption of C.L.W., 467 So.2d 1106 (Fla. Dist. Ct. App. 1985); In the Matter of Baby "E", 427 N.Y.S.2d 705 (N.Y. Fam. Ct. 1980).
84. See e.g., In the Matter of the Adoption of T.M.M., 608 P.2d 130 (Mont. 1980); In re Adoption/Guardianship No. 3598, 675 A.2d 170 (Md. Ct. Spec. App. 1996).
85. See e.g. In re Adoption No. 10087, 597 A.2d 456 (Md. 1990)(using best interests of child as standard for requiring retroactive compliance); In re Adoption of Calynn, M.G., 137 Misc. 2d 1005, 523 N.Y.S.2d 729 (Sur. Ct. 1987)(using best interests of child standard to permit adoption petition to go forward and reducing attorney's fees as sanction against attorney who persistently violated ICPC).
86. Wendell and Rosenbaum, supra note 5, Appendix '3-A.11 at 3A-14.
87. 675 A.2d 170 (Md. Ct. Spec. App. 1996), cert. granted (July 3, 1996). As of the time of this writing, no decision had been issued.
88. This case presents significant issues related to unwed birth father's rights, both on constitutional grounds as well as, possibly, on state statutory grounds. See e.g., Stanley v. Illinois, 405 U.S. 645 (1972)(state law presuming unfitness of unwed fathers as a class found to violate Constitution on due process and equal protection grounds); Caban v. Mohammed, 441 U.S. 380 (1979)(unwed father may not be denied by state law the right to consent to or to veto his child's adoption where father has manifested a significant paternal interest in the child). Some states allow men who are not married to the child's mother but who have formally established paternity to veto the child's adoption. See e.g., IND. CODE ' 31--3-1--6.1 (1992). This analysis takes issue with the basis for the court's decision -- the violation of the ICPC. It is not clear why the birth father in this case based his legal arguments on the ICPC, rather than on what would appear to be stronger constitutional or, perhaps, state statutory grounds -- either of which may have mandated the ultimate outcome.
89. 675 A.2d at 187.
90. See e.g., Stancil v. Brock, 425 S.E.2d 446 (N.C. Ct. App. 1993); In re Adoption/Guardianship No. 3598, 675 A.2d 170 (Md. Ct. Spec. App. 1996); In the Matter of the Adoption of TMM, 608 P.2d 130 (Mont. 1980); In re Adoption of C.L.W., 467 So.2d 1106 (Fla. Dist. Ct. App. 1985).
91. See e.g., In re Adoption/Guardianship No. 3598, 675 A.2d 170 (Md. Ct. Spec. App. 1996); Stancil v. Brock, 425 S.E.2d 446 (N.C. Ct. App. 1993); In the Matter of Baby "E", 427 N.Y.S.2d 705 (N.Y. Fam. Ct. 1980).
92. Receiving states, for example, have experienced frustration when sending states provide incorrect addresses for prospective adoptive families, making it extremely difficult for staff in the receiving state to initiate the evaluation. Personal communication with Ann Sullivan, Adoption Program Director, Child Welfare League of America.
93. 42 U.S.C. '' 620-629e, 670-679a (1994).
94. 42 U.S.C. '' 5101--5119c (1994 and Supp. 1996).
95. Hartfield, supra note 1, at 325.
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