Matter of J.T.
Annotate this CaseDecided on December 29, 2008
Family Court, Bronx County
In the Matter of J.T., M.T., Children under Eighteen Years of Age Alleged to be Neglected by GAIL B.
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Attorneys:
Linda McCarthy, Esq., Administration for Children's Services
Zachery Neeley, Esq., Legal Aid Society
Aleza Ross, Esq., 18-B panel, for Gail Barton, respondent mother
Edwin Wintle, Esq., The Bronx Defenders, for Luis Taylor, non-respondent father
Douglas E. Hoffman, J.
J.T. and M.T. are the children of respondent-mother Gail B. and non-respondent
father Luis T. On July 17, 2008, the Administration for Children's Services (ACS) filed neglect
petitions against Gail B. alleging extensive illegal drug use and inadequate guardianship and
supervision. Consequently, the children were remanded to the care and custody of the
Commissioner of Social Services (CSS). On the date of filing, non-respondent father Luis T.
appeared before the court seeking to take the children into his care and move to North Carolina;
he was then residing in Virginia. The parties disputed the extent of contact the subject children
had in the past with their father. M.T. is now 12 and J.T. is 11 years of age. The permanency goal
for the children at the time of filing of the neglect petition against respondent mother was, and
remains, "Return to Parent."
On August 19, 2008, counsel for non-respondent father filed the instant Order to Show Cause seeking to have the children paroled to him. On September 3, 2008, the court granted the motion to the extent that the court would conduct a hearing as to the underlying issue raised in the motion: Whether or not paroling the subject children to non-respondent father, who lives out-of-state, invoked the Interstate Compact on the Placement of Children (ICPC). Although non-respondent father posited that, as he is the biological parent, submission of an interstate compact was not required prior to his gaining custody of the subject children, it was the joint position of ACS, respondent mother, and the law guardian that the children could not be placed out-of-state without first complying with Social Services Law § 374-a, the ICPC laws in the State of New York. This Court ordered that an ICPC be started immediately and assigned CASA [*2](Court-Appointed Special Advocates) to assist in expediting the process between New York and North Carolina. As this court did not immediately order the subject children released to the father in North Carolina, the father's counsel filed an appeal with the Appellate Division and sought an order directing the immediate parole of the subject children to the father in North Carolina. This court thereafter issued a Short Order, dated September 22, 2008, denying non-respondent father's motion to parole the children to his care out-of-state, with a written decision to follow. Subsequently, the Appellate Division, First Department denied non-respondent father's application, with leave to perfect his appeal, on September 25, 2008 and entered on October 2, 2008. The court now sets forth its decision and incorporates the short order dated September 22, 2008.
When a child is in the foster care system, placement of a child beyond state borders must first comply with the laws of the Interstate Compact on the Placement of Children (ICPC). Soc. Serv. Law § 374-a. The purpose of the ICPC is manifold. Two of the primary goals are to ensure that a child is placed in an appropriate and safe environment promoting the child's best interests, and to prevent the home state of the child, New York herein, from shirking its foster care responsibilities by foisting them upon another state. Matter of Shaida W., 85 NY2d 453, 649 NE2d 1179, 626 NYS2d 35 (1995); see also Matter of H./M. Children, 217 AD2d 164, 634 NYS2d 675 (1st Dept. 1995). On a more practical level, compliance with the ICPC also prevents a home state from sending a child to another jurisdiction only to find that such placement is not in the child's best interests or that the receiving household presents an actual danger to the life, health or safety of the subject child. See Matter of Melinda D., 31 AD3d 24, 815 NYS2d 644 (2d Dept. 2006) (Florida authorities refused to approve placement, although child had already been in the Florida home with the New York foster mother and within its jurisdiction for almost two years).
As noted, the interstate compact provisions are codified in NY Soc. Serv. Law § 374-a. One provision of the compact serves as a focal point of contention in the instant proceedings. Article VIII, section (a) states that "this compact shall not apply to the sending or bringing of a child into a receiving state by his parent, step-parent, grandparent ... and leaving the child with such relative or non-agency guardian in the receiving state." As non-respondent father is the children's biological father, this court must determine whether the instant matter falls within the purview of Article VIII, section (a).
Most recently, the Appellate Division, Second Department was confronted with a matter very similar to those presently before this court. In Matter of Faison v. Capozello, 50 AD3d 797, 856 NYS2d 179 (2d Dept. 2008), the non-respondent father, a resident of New Jersey, commenced custody proceedings concerning his infant son, placed in the care and custody of the local DSS. The New York Family Court ordered DSS to initiate a request for placement pursuant to the ICPC. After investigating the father's home, the State of New Jersey DSS found that the father's home was unsuitable and that placement of the child into the father's care was not in the child's best interest. The Faison court, in finding that placement of the infant child with the father first required compliance with the ICPC, followed the reasoning set forth in Matter of Shaida W. and cases following that determination. See Matter of Ryan R., 29 AD3d 806, 815 NYS2d 221 (2d Dept. 2006)(finding that court erred in placing child with aunt in New Jersey without compliance with ICPC); Matter of Keanu Blue R., 292 AD2d 614, 740 NYS2d 98 (2d [*3]Dept. 2002).
In Matter of Shaida W., supra , five children were placed in the care and custody of the Commissioner of Social Services, who then placed the children in the kinship foster home of the maternal grandmother. The whole family thereafter moved to California. New York retained jurisdiction over the family, and the California case worker assigned to the case was required periodically to report to ACS. After termination proceedings were commenced against the respondent mother, a California report indicated that the mother had also moved to California and was complying with services. Approximately one year later, ACS filed a petition to extend placement of the children until the mother was ready to resume care or the grandmother adopted the children. Contemporaneously, the California case worker recommended that New York relinquish "dependency"of the children as the respondent mother expressed a willingness to care for the children. Relying on the California case worker's recommendation and upon the fact that the family was living in California, Family Court in New York terminated its proceedings and relinquished its jurisdiction over the children. The Appellate Division affirmed the determination of the Family Court, reasoning that New York could not retain jurisdiction as the matter fell within the exception of Article VIII (a), which states that the ICPC is not applicable when the person sending or bringing the child into the state is a "parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian..."
Reversing the appellate court, the Court of Appeals in Shaida W., held, inter alia, that the ICPC applied although it was the grandmother who physically transported the subject children to another state. The Court of Appeals noted that the legislative intent in drafting Soc. Serv. Law § 374-a was to "promote cooperation among States in providing each child with the maximum opportunity to be placed in a suitable environment ...with person or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree [and type] of care.'" Shaida W., supra , at 458. Essentially, the Court held, the ICPC establishes a statutory "safety net" for children being placed beyond state borders. The Court emphasized that although the children were physically brought to California by the maternal grandmother, DSS is the sending agency who had legally "sent" the children to California. Id. at 460. As the children were legally in the custody of DSS, that agency as a matter of law maintained responsibility for the children's care and, therefore, the New York court had to retain jurisdiction over the children. Id.
Similarly, in the instant proceedings, the subject children have been remanded to the care and custody of the Commissioner of Social Services. It remains this court's obligation prior to transferring the children to another state to determine if that ultimately is in the best interest of the children, to ensure that the subject children be placed in a safe and suitable environment while respondent mother participates in necessary services. Although the father is not a respondent, it would be the Commissioner of Social Services, not the parent, who would be sending the subject children to North Carolina or Virginia within the meaning of Soc. Serv. Law § 374-a.
Compliance with ICPC requirements would serve to ensure, inter alia, that the father's home is safe and otherwise appropriate for J.T. and M.T. before the children are sent out of this jurisdiction. Once the subject children are placed in Virginia or North Carolina, New York would maintain oversight responsibility, at least for a period of time until final disposition. Soc. [*4]Serv. Law § 374-a, Article 5. The court notes further, that the stated goal at this point in these proceedings is return of the children to respondent mother when she is able properly to care for the subject children. Pursuant to the ICPC, this court would retain jurisdiction until this goal is achieved or until an alternative final resolution is reached, including the possibility of release of the children to the father.
This court acknowledges that there are often delays in completing all aspects of an interstate
compact and that many of these delays result from unnecessary errors by the sending agency, as
well as by the sending and/or receiving state in processing the interstate compacts. This court has
and will continue to monitor the ICPC and has assigned a specialized agency, CASA, to assist
with expediting the processing of the interstate compact. For the reasons set forth above, this
court is constrained to deny the father's motion for the immediate return of the children to him in
either North Carolina or Virginia. This constitutes the decision and order of the court.
Dated: Bronx, New York
December 29, 2008ENTER:
Douglas E. Hoffman, J.F.C.
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