Social Services; Interstate Compact on Placement of Children; Application to Parents

Subject:

Social Services; Interstate Compact on Placement of Children; Application to Parents.

Requested By:

Sarah T. Morrow, M.D., M.P.H. Secretary North Carolina Department of Human Resources

Question:

If the parents of a child who is in the custody of a county department of social services take that child out of North Carolina to live with them in another state, and if that other state is, as is North Carolina, a party to the Interstate Compact on the Placement of Children, can the custody of the child be returned to the parents, while they are in the other state, when such action is requested by the county department of social services or the child’s guardian ad litem?

Conclusion:

The child may not be returned to the custody of his parents except as the Interstate Compact on the Placement of Children provides. This includes the prior approval of the receiving state.

The Interstate Compact on the Placement of Children, North Carolina General Statutes Chapter 110, Article 4A, has now been adopted in all but a handful of states. Its purpose is to permit the party states "to cooperate with each other in the interstate placement of children for the benefit of children, the convenience of the states and preservation of appropriate jurisdiction. G.S. 11057.1, Article I. The Compact provides in pertinent part as follows:

"No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in the Article and with the applicable laws of the receiving state governing the placement of children therein."

G.S. 110-57.1, Art. III(a).

As used in the above section of the Compact certain terms have the following meanings:

""Placement" means the arrangement of the care of a child in a family free or boarding home or in a child-placing 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 medical facility."

G.S. 110-57.1, Art. II(b).

""Sending agency" means a party state officer or employee thereof; a subdivision of a party state, or an officer or employee thereof; a court of a party st ate; a person, corporation, association, charitable agency or other entity which sends, brings or causes to be brought any child to another party state."

G.S.

110-57.1, Art. II(b) (emphasis added).

""Receiving state" means that the state to which a child is sent, brought or caused to be sent or brought, whether by public authorities or private persons or agencies, and whether for placement with state or local authorities of [or] for placement with private agencies or persons."

G.S.

110-57.1, Art. II(c) (emphasis added) (brackets in original).

The Compact contains an express limitation concerning its application to the placement of children by their parents, relatives or guardians. That limitation is as follows:

"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 by his guardian and leaving the child with any such relative or non-agency guardian in the receiving state. . . ."

G.S.

110-57.1, Art. VIII

In situations where the Compact applies it requires that the "sending agency" give prior notice to the "receiving state" before a child is "placed" in the receiving state. The child should not be brought or sent to the receiving state until it notifies the sending agency that the proposed placement does not appear to be contrary to the best interest of the child. G.S. 110-57.1, Art. III. The sending agency retains jurisdiction over the child "until the child is adopted, reaches majority, becomes self supporting, or is discharged with the concurrence of the appropriate authority in the receiving state."

G.S.

110.57.1, Art. V(a) (emphasis added.)

In addition to the Compact itself, there are certain regulations which apply to this question. See,

G.S.

110.57.1, Art. VII (compact administrators’ authority to promulgate regulations). The regulations are as follows:

"The term "placement" as used in the Interstate Compact on the Placement of Children is not limited to a placement having an interstate incidence when originally made. Whenever a child is placed in contemplation of adoption or in foster care without an intention that an adoption may follow, the arrangement, consent or permission (expressed or implied) pursuant to which the child is caused to reside in a state other than the one in which the sending agency is situated shall be a placement within the meaning of the Compact. Accordingly an intrastate placement not subject to the Compact may become an interstate placement subject thereto if, at some subsequent time prior to consummation of the adoption or during the continuance of the foster care status, the home is moved to another state."

G.S.

110-57.1, Art. VII, Reg. 1(a) (effective May 1, 1973).

""Placement" as defined in Article II(2) includes the arrangement of a child in the home of his parent, other relative or non-agency guardian in a receiving stat when the sending state is any entity other than a parent, relative or non-agency guardian making the arrangement for care as a plan exempt under Article VIII(a) of Compact."

G.S.

110-57.1, Art. VII, Reg. 3(a) (effective April 19, 1978).

"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 ".

G.S.

57.1, Art. VII, Reg. 3(c) (effective April 19, 1978 (emphasis added).

Given the foregoing statutes and regulations, the following question arises: If the parent of a child who is in the legal custody of a North Carolina county department of social services takes the child to live in another state, which is also a party to the Interstate Compact on the Placement of Children, and, thereafter, the North Carolina county department of social services or the child’s guardian ad litem wishes to return the child to the custody of its parents while the child and its parents are living in the other state, can this be done without violating the Compact and, if so, how?

In our opinion the Compact applies in this situation. Therefore, the child cannot be returned to the custody of its parents without the "concurrence of the appropriate authority in the receiving state." G.S. 110.57.1, Art. V(a). We reason as follows:

Taking the child from North Carolina into another state constitutes placement as defined in the Compact. G.S. 110-57.1, Art. II(b). The child is being cared for in a "family free . . . home", specifically, the home of his parents. Id.

That placement has been arranged by the county department of social services. Id. When the parent takes the child into the next state, it becomes an interstate placement, and when the North Carolina county department of social services or the court learns of this move and allows it to continue, the department or the court gives its implied consent to the placement. See, G.S. 11057.1, implied consent to the placement. See, G.S. 100-57.1, Art. VII, Reg. 1(a). Moreover, when the North Carolina county department of social services, or the child’s guardian ad litem seeks to have the North Carolina court discharge its jurisdiction over the child, and the court does so, it explicitly consents to this interstate placement. Id.

The limitations on the Compact do not apply. Regulation 3(c) clearly says that a parent may not move its child to another state unless it has full legal authority to do so. In the case presented, the parent does not.

This conclusion is bolstered by Opinion 34 of the Secretariat for the Interstate Compact on the Placement of Children. There, the Secretariat was asked to render its opinion concerning the application of the Compact to the following facts: A mother, who had legal custody of her child, resided in State A. There she was charged with child neglect, and local welfare officials took custody of her child. Upon learning of these proceedings, the child’s father came from State B to State A to attend the neglect proceedings. The court in State A proposed to drop the neglect proceedings and award custody of child to the father so that the child could return with the father to State B. The Compact’s Secretariat opined that the Compact applied to this situation.

Finally, there can be no doubt that the home of a natural parent can be "foster home" as used in the Compact. This implication is drawn necessarily from the terms of the limitation in Article VIII(a) and it underlies the decision reached by the Secretariat in its official Opinion 34 above.

To sum up, under the circumstances presented, the court cannot divest itself of the jurisdiction over the case and return the child to the custody of its parents without the prior concurrence of the receiving state. This may occasionally cause serious difficulties for the court. Such difficulties are not uncommon when people flout the orders of state courts and move across state lines. However, it should be noted that these difficulties do not include any threat to the power of the receiving state’s courts to protect the children from abuse or neglect. See, G.S. 50A-25, G.S. 50A-3, and G.S. 50A-6.

RUFUS L. EDMISTEN Attorney General

STEVEN MANSFIELD SHABER Assistant Attorney General