Texas Child Protection Law Bench Book
August 2015 edition
The Interstate Compact on the Placement of Children (ICPC)
Introduction
This chapter is an overview of the Interstate Compact on the Placement of Children (ICPC). ICPC is a uniform law enacted by all fifty states, the District of Columbia and the US Virgin Islands. The purpose of ICPC is to ensure that children placed out of their home state receive the same protections and services that would be provided, if they remained in their home state. The ICPC can be found at Tex. Fam. Code § 162.102.
To see any specific ICPC regulations mentioned throughout this chapter, please link to the ICPC regulations here:
http://www.aphsa.org/content/AAICPC/en/ICPCRegulations.html
In 2014, CPS underwent an Operational Review and a Sunset Review, and as a result, CPS embarked on streamlining its ICPC policy. The revised policy is not yet available, but the current (unrevised) on the DFPS website may be located here:
https://www.dfps.state.tx.us/handbooks/CPS/Menu/MenuCPS9000.asp
Some recent efforts to improve the Texas ICPC process include:
• The overall processing of expedited home study requests
• Regional ICPC coordinators have been tasked to assist Texas caseworkers with the ICPC process
• Texas ICPC/State office and Regional ICPC coordinators are promoting on-line easily accessible ICPC training
• Texas ICPC/State Office created a spreadsheet to use jointly with the ICPC regional coordinators to routinely track and check for the status of outgoing home study requests
In addition, DFPS is working on a data report to assist in tracking timeliness of outgoing requests.
A. Purpose of the ICPC
The purpose of the ICPC is to protect the child and the party states in the interstate placement of children so that:
• The child is placed in a suitable environment;
• The receiving state has the opportunity to assess that the proposed placement is not contrary to the interests of the child and that its applicable laws and policies have been followed before it approves the placement;
• The sending state obtains enough information to evaluate the proposed placement;
• The care of the child is promoted through appropriate jurisdictional arrangements; and
• The sending agency or individual guarantees the child legal and financial protection.
B. ICPC Applicability
Generally, it applies to any interstate placement of a child over whom the court has jurisdiction. ICPC applies to the following:
• Placements that are preliminary to an adoption whether public or private adoption
• Placements in a licensed or approved foster home, including related and unrelated caregivers
• Placements with parents and relatives when a parent or relative is not making the placement (i.e., the parent does not have legal custody / right to make the placement)
• Placements in group homes or residential placement, including accused or adjudicated delinquents placed in institutions in other states
1. The ICPC does not apply to the following:
• Birth parents placing with a non-custodial birth parent, or a relative as long as no court has assumed jurisdiction of the child to be placed
• Relatives placing with birth parents or another relative as long as no court has assumed jurisdiction of the child to be placed
• A Court with jurisdiction that transfers the child to a non-custodial parent, AND:
◦ does not have evidence before it that such parent is unfit;
◦ does not seek such evidence; and
◦ does not retain jurisdiction over the child after the court places the child
▪ note that the receiving state has no responsibility for supervision or monitoring a placement made under these circumstances
• Placements into schools where the primary purpose for the placement is educational
• Placements into medical and mental facilities
• Tribal Placements (See the Indian Child Welfare Act section below)
• Visits, as long as the visit meets the definition under the ICPC Section I.D.3 (See also Visit vs. Placement section below)
C. Jurisdiction vs. Process
When a case comes before a juvenile or family court, the issue of jurisdiction will always precede the question of whether the ICPC applies. Thus, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA), and the Parental Kidnapping Prevention Act (PKPA) must be considered to determine whether the court and child welfare agency have continuing jurisdiction over child custody, which is precedent to the question of authority to place a child out-of-state. Case law in J.D.S. v. Franks differentiates between the jurisdictional components of the UCCJA and the purview of the ICPC. J.D.S. v. Franks, 893 P.2d 732 (Ariz. 1995). In Franks, the Supreme Court of Arizona explained that the compliance with the ICPC is not a prerequisite for exercising jurisdiction because the ICPC merely establishes a procedure to follow when a placement is made. Thus, the validity of a court’s exercise of jurisdiction depends on the UCCJA (or UCCJEA) and PKPA. Franks spells out that the ICPC governs procedure, whereas the UCCJA (or UCCJEA) and PKPA govern jurisdiction. Likewise, in White v. Adoption of Baby Boy D., the Supreme Court of Oklahoma held that the ICPC does not negate subject matter jurisdiction. White v. Adoption of Baby Boy D., 2000 OK 44, 10 P.3d 212 (Okla. 2000).
D. Court Leadership
The National Council of Juvenile and Family Court Judges recommends close judicial monitoring to ensure the case is moving according the ICPC timeframes. Special hearings may be required to ensure that certain activities are completed in a timely manner. Lack of understanding of the ICPC and its requirements is often cited as a problem that causes delays in an ICPC placement. Other delays are built into the ICPC process itself.
Special Issue: Many receiving states routinely deny home studies, especially on non-custodial parents, and there is no appeal process – a highly criticized flaw in the ICPC. Judges should consider directly contacting the judge in the receiving jurisdiction to ask for assistance in completing the ICPC process in the receiving state and with home studies that are stalled or denied without sufficient explanation and no recourse for reconsideration. |
E. Expedited Placement Request
Under certain conditions, a court may request an expedited placement review. Cases involving a child who is under the jurisdiction of a court are eligible, if at least one of the following criteria is met:
• There is unexpected dependency due to a sudden or recent incarceration, incapacitation or death of a parent or guardian. Incapacitation means a parent or guardian is unable to care for a child due to a medical, mental or physical condition of a parent or guardian;
• The child sought to be placed is four years of age or younger, and can include older siblings sought to be placed with the same proposed placement resource;
• The court finds that any child in the sibling group sought to be placed has a substantial relationship with the proposed placement resource. Substantial relationship means the proposed placement has a familial or mentoring role with the child, has spent more than cursory time with the child, and has established more than a minimal bond with the child; or
• The child is currently in an emergency placement.
Expedited placement option is not available where:
• The child has already been placed in the receiving state in violation of the ICPC, unless a visit has been approved in writing by the receiving state Compact Administrator and a subsequent order entered by the sending state court authorizing the visit with a fixed return date in accordance with Reg. No. 9; or
• The intention of the sending state is to place the child for licensed or approved foster care or adoption.
Expedited placement, like the ICPC, does not apply at all when:
• The court places the child with a parent from whom the child was not removed, the court has no evidence the parent is unfit, does not seek any evidence from the receiving state the parent is either fit or unfit, and the court relinquishes jurisdiction over the child immediately upon placement with the parent.
It is not within a judge’s discretion to make all orders expedited. The situation must fit those criteria outlined in ICPC Regulation 7 for priority placement to be available; it is not a matter of discretion for judges. See explanation of Regulation VII, updated in October 2011.
http://icpc.aphsa.org/content/dam/AAICPC/PDF%20DOC/Home%20page/ICPC-Regulation7-Sept2011.pdf.
Also, see suggested court order to be used when seeking expedited placement.
F. Visits vs. Placement
Although some judges feel that it is within their discretion to grant “extended visits,” these may actually be deemed an illegal placement with significant consequences. ICPC Regulation 9 defines a “visit,” which is distinguished from a placement on the basis of purpose, duration, and the intention of the person or agency with responsibility for planning for the child as to the child’s place of abode. For example, if the purpose of a visit is to provide the child with a social or cultural experience of short duration, such as a camp stay or visit with a friend or relative, and is less than 30 days, it will be presumed to be a visit. A stay of more than 30 days, but not longer than the duration of a school vacation period, can also be considered a visit. A stay that does not have a terminal date will be considered a proposed placement. Once a home study or supervision request has been made by the sending agency, there is a rebuttable presumption that the intent of any stay in the receiving state that exceeds 30 days is for placement and not simply a visit.
G. ICPC and Victims of Domestic Sex Trafficking
According to a Juvenile Law Advisory Committee Brief on the ICPC and Domestic Child Sex Trafficking issued by the National Council of Juvenile and Family Court Judges in 2014, and in the context of child sex trafficking victims, the ICPC is often implicated in trying to place victims in the few facilities that can provide the extensive services needed for trafficking survivors. As the needs of this population are complex and expensive, only a limited number of residential institutions can provide this high level of care. Services for victims often require multi-systemic and long-term care, and the cost of housing a child in a residential facility can be expensive. Additionally, the operation of residential facilities is legally and practically complicated, and unfeasible for many poor, small or rural counties. Thus child sex trafficking victims may not have a variety of placements which fit their needs, forcing placing agencies to look outside the home state. There are various organizations that also recommend victims be removed from the original geographic area of exploitation during restorative services. There are only a handful of facilities throughout the country that specifically provide placement and services for trafficking victims.
H. The Indian Child Welfare Act and the ICPC
Because the ICPC is a compact adopted by states as state law, the federal Indian Child Welfare Act (ICWA) preempts conflicting state law. Thus, the ICPC does not apply to interstate placements of an Indian child if the placement is being made within an Indian reservation unless:
• The tribal government requests ICPC services;
• The tribe has adopted the ICPC; or
• The tribe has an existing Title IV-E agreement with the state requiring ICPC compliance.
If an Indian child is being placed interstate but not within a reservation, the ICPC applies to that placement. However, the placement requirements of ICWA preempt any ICPC requirements that interfere with or impede the implementation of the placement required by ICWA. See Bench Book chapter on the Indian Child Welfare Act for information about placement preferences and requirements when ICWA is involved.
I. Additional Resources
ICPC: A Manual and Instructional Guide for Juvenile and Family Court Judges, NCJFCJ located at http://www.ncjfcj.org/sites/default/files/ICPCManualandGuideFullDoc_0.pdf.
Vivek Sankaran, Foster Kids in Limbo: The Effects of the Interstate Compact on the Placement of Children on the Permanency of Children in Foster Care (2014). http://www.law.umich.edu/centersandprograms/pcl/Documents/Final%20Summary%20to%20Casey.pdf
Leading Cases:
Rejecting the argument of prospective adoptive parents, residents of Colorado, with whom a child had been placed by the child's Texas managing conservator, that the Colorado court where the petition for adoption was pending had jurisdiction over the child, a Texas Court of Appeals in Unger v. Baker, 01-89-00803-CV (Tex. App. Houston 1st Dist. Aug. 18, 1989)(unpublished), held that under Article V(a) of the ICPC, the managing conservator, as the sending agency, retained jurisdiction over the child because the child had not yet been adopted. Therefore, the child was subject to the jurisdiction of the Texas trial court in which the managing conservator had filed a motion to remove the child from the temporary placement with the prospective adoptive parents and overruled the prospective adoptive parents' motion for leave to file mandamus seeking rescission of the Texas trial court's order overruling their special appearance to contest the Texas court's jurisdiction.
Washington State ICPC case, In the Matter of the Dependency of D.F.M., 157 WA. App. 179 (Wash. Ct. App. 2010). Located at http://www.washapp.org/Opinion.aspx?id=148.
ICPC Regulations:
http://www.aphsa.org/content/AAICPC/en/ICPCRegulations.html