Courts handling child abuse and neglect cases face a daunting task. Within one to three days after a child is removed from his home, a court hearing must be held to determine whether court intervention and continued removal of the child is necessary. At this hearing, the court must sort through and evaluate the state's allegations and assess the various risks posed by placing the child in foster care or returning the child to one or both of his parents. Courts must weigh the heavy emphasis the law places on preserving the family unit against the equally paramount mandate to keep the child safe at all Costs. Courts thus face a daunting choice: should they risk a child's safety by returning him to a potentially dangerous parent or place the child in foster care and risk rupturing the familial bond so important to a child's healthy development? A court's struggle to resolve these competing tensions in child protective cases is exacerbated when it receives a request from a non-custodial parentone against whom no allegations of parental unfitness have been made-to have his child placed with him. Typically these situations arise when a parent who was living apart from the child learns that the child was placed in foster care due to the acts or omissions of the other parent. The non-custodial parent appears in court and requests immediate custody of the child. At that point, the court knows very little about the parent, yet has no specific information to justify keeping the child away from him. The risk posed by placing the child with the non-custodial parent is the uncertainty created by a lack of information.6 Keeping the child in foster care, however, creates the possibility of irreparably damaging the child's relationship with his parent and unnecessarily placing him in a child welfare system rife with problems. 7 Considering the magnitude of this decision, courts carefully consider the evidence and hear arguments submitted by the parties prior to issuing a ruling.8 An extra layer of complexity is added when the non-custodial parent resides in a different state. Consider, for example, the following scenario: Steven, a young child of separated parents, lived with his mother in the District of Columbia but enjoyed a nurturing relationship with his father, Mark, who happened to live across the border in Maryland. Steven saw Mark every weekend and looked forward to the time they spent together. Mark remained an active parent and always looked for ways to stay involved in his child's life. One day, the Child and Family Services Agency ("CFSA") removed Steven from his mother's custody because, unbeknownst to Mark, Steven's mother was selling drugs in the home. At the time of removal, the police did not inquire about the existence or whereabouts of Steven's father, and CFSA automatically placed Steven in a foster home. The day after Steven was removed, an initial hearing was held before a family court judge in the District of Columbia. Mark, who was only notified about the hearing by Steven's mother, appeared and requested that Steven be placed in his custody. The law presumed him to be a fit parent and the State's petition contained no allegations to the contrary. Yet upon learning that Steven's father resided in Maryland, the State requested that a home study be conducted as required by the Interstate Compact on the Placement of Children ("ICPC" or "Compact"), a uniform law enacted in every state.9 The judge warned that the process could take months depending on the availability of a Maryland caseworker. But due to the ICPC, the judge's hands were tied; the Compact requires a caseworker in the foreign state to conduct an assessment and approve the potential placement before a child can be placed in the home. And until the out-of-state approval is received, the ICPC prohibits the court from making the placement. Steven, thus, had to remain in foster care for the time being. Two months later, the home study was completed and the proposed placement was denied. The Maryland caseworker was concerned that Mark lacked sufficient space in his home and failed to demonstrate sufficient expertise to care for a young child. Although she did not allege that Mark was an unfit parent as defined by state laws, the worker believed that the proposed placement was contrary to Steven's interest.10 Although the court disagreed with the worker's assessment, it found, pursuant to the ICPC, that it had no legal authority to override the worker's determination.11 Mark was also told that appellate procedures were unavailable and that his only remedy was to request another home inspection should his living conditions improve. Over the next year, while Mark struggled to identify how to challenge the caseworker's determination, Steven spent time in four different foster homes and three schools wondering all the while why his father refused to get him. 12 This scenario repeats itself in courtrooms across the country. 13 The application of the ICPC has deprived out-of-state parents of their rights and done so under a less rigorous process than that used in intrastate custodial decisions. Children are separated from their parents based solely on a finding by an administrative agency that the proposed placement would be contrary to the child's interests, a standard left undefined in statutes and regulations. 14 Agencies take months to make placement decisions, and during this period, children remain in foster care. 15 Once a decision is made, there may be no opportunity for parents to challenge that finding in court, and administrative review procedures, if any, are inadequate. As a result, a caseworker often becomes the ultimate arbiter not only of the child's placement but of the parent's rights. This Article will argue that the current application of the ICPC violates the constitutional and custodial rights of non-custodial parents and increases the likelihood that children will unnecessarily remain in foster care, a fate that exposes them to serious emotional and physical harms. First, the Article will address the transformation of the ICPC from a mechanism to regulate the interstate movement of children to foster homes into a means by which the state deprives non-custodial parents of their parental rights. Second, the Article will argue that such a transformation has created significant constitutional concerns. Specifically, the current application of the ICPC fails to comport with due process by delegating the sole responsibility for making the placement decision to child welfare caseworkers, by denying parents the right to have an unfavorable decision reviewed by a court, and by delaying the entire process by months. Finally, specific reform proposals will be examined, including exempting biological parents from the purview of the Compact or modifying its provisions when applied to biological parents. At the heart of these proposed changes is the need to ensure that home studies are completed in a timely manner, as well as the need to give courts, not caseworkers, the final authority to make placement decisions. Taking these steps would expedite permanency in the lives of foster children, encourage non-custodial parents to remain involved in their children's lives, and alleviate the burden on a taxed and unresponsive child welfare system.
Sankaran, Vivek. "Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the Interstate Compact on the Placement of Children." Yale L. & Pol'y Rev. 25, no. 1 (2006): 63-94.