Senate Bill S5261

                                BILL NUMBER:S5261

TITLE OF BILL:  An act to amend the family court act, in relation to not
requiring  compliance  with  the  interstate compact on the placement of
children when placing children with relatives or other suitable persons

PURPOSE:

The purpose of this bill is to amend  provisions  in  Family  Court  Act
Article  Ten  so that unnecessary and time-consuming compliance with the
Interstate Compact on the placement of Children (ICPC) is  not  required
by  the  family court when it releases a child to the custody of an out-
of-state parent or other relative or a suitable unrelated person.

SUMMARY OF PROVISIONS:

Section 1 amends Family Court Act § 1017(2)(a)(i) to state that when the
family court grants an order of custody or guardianship to a non-respon-
dent parent or other relative or a suitable unrelated person pursuant to
Family Court Act § 1055-b, compliance with  the  ICPC,  as  codified  in
Social Services Law § 374-a, shall not be required.

Section  2 amends Family Court Act § 1055-b in a like manner by adding a
new subdivision (f) which states that when the  court  issues  an  order
granting  custody  of guardianship pursuant to § 1055-d, compliance with
the ICPC shall not be required.
              

Section 3 is the enacting clause

EXISTING LAW:

The ICPC itself is consistent with this legislation. Some older New York
appellate cases imposed the ICPC compliance rule removed by this  legis-
lation, but more recent case law is consistent with this legislation.

JUSTIFICATION:

In  many  instances,  a  child who would otherwise remain in foster care
with no guarantee and sometimes no hope  of  permanency  can  be  safely
released  to  an out-of-state parent or other relative or other suitable
person who has not been charged with acts of  child  neglect  or  abuse.
Unfortunately,  for many years, New York courts held that the release of
a child to the custody of an out-of-state caretaker is governed  by  the
ICPC.  As  a result, the reunification of out-of-state parents and their
children often has been postponed for lengthy periods because of bureau-
cratic delay, and sometimes blocked  entirely  because  of  unreasonable
objections  raised  by authorities in other states. The ICPC includes no
means of formally challenging another state's decision.

The legal landscape has shifted dramatically in recent years. ICPC Regu-
lation 3(2)(a)(3) requires ICPC compliance in cases involving placements
with parents and relatives when a parent or relative is not  making  the

placement.  However,  ICPC  compliance is not required "(w)hen the court
places the child with a parent from whom the child was not removed,  and
the  court  has  no evidence that the parent is unfit, does not seek any
evidence  from  the  receiving  state  that  the parent is either fit or
unfit, and the court relinquishes jurisdiction over the child immediate-
ly upon placement with the parent." Regulation 3(3)(a).  Moreover,  high
courts in other states have held that the ICPC by its terms applies only
to  placements  for  foster care and adoption, and that any extension of
the ICPC, via ICPC regulations, to  cover  placements  with  parents  or
other  relatives  is  ineffective.  See, e.g., In re Emoni W., 48 A.3d 1
(Conn. 2012); In re Alexis 0., 959 A.2d 176 (N.H. 2008); Dept. of  Human
Services v.  Huff, 65 S.W.3d 880 (Ark. 2002).

Current  New  York  case  law also leads to the conclusion that the ICPC
does not apply when a child  is  released  to  a  caretaker's  permanent
custody  in a custody or guardianship proceeding, rather than placed for
foster care or for adoption. The Family Court Act now provides that  the
court  may  award custody or guardianship pursuant to Article Six of the
Family Court Act to a parent or other relative or other suitable  person
at  disposition  in  an  Article  Ten  proceeding or in an Article Ten-A
permanency proceeding, and thereby terminate the  court's  jurisdiction.
FCA  §§ 1055-b, 1089-a. This termination of jurisdiction comports nicely
with the spirit of Compact Regulation 3(3)(a), and,  indeed,  compliance
with the ICPC is not required when custody is awarded to an out-of-state
caretaker and the court does not retain jurisdiction. In re Louis N., 98
A.D.3d 918 (1st Dept.  2012) (no error where, upon consolidated disposi-
tional  hearing  in custody and abuse/neglect proceedings, court awarded
custody to out-of-state grandmother  without  compliance  with  Compact;
ICPC  does not apply where custody ordered under FCA Article Six and FCA
§ 1055-b(a)). As noted by the First Department in Louis P., a well-known
authority already had opined that the ICPC do es not apply when a custo-
dy or guardianship order is issued under Article Six. See Merril  Sobie,
Practice Commentary, Family Court Act § 651.

Accordingly,  the Family Court Act should be amended to bring it in line
with recent court decisions in New York, and with what appears to  be  a
developing  consensus around the country that the ICPC does not apply in
these circumstances. For many years, child welfare professionals in  New
York,  not  to mention children and relatives kept apart by ICPC-related
bureaucratic roadblocks, have lamented the  unnecessary  application  of
the  ICPC  in cases in which it was never meant to apply. It is critical
that the Legislature end this practice throughout New York State.

LEGISLATIVE HISTORY:

None

FISCAL IMPLICATIONS:

Minimal

EFFECTIVE DATE:

This act shall take effect immediately.