November 11, 2019 Practice Points

Five Things to Consider When Dealing with Interstate Placement of Children

Knowing these aspects of the ICPC can help prevent the unnecessary return of children to the jurisdiction of their originating states.

By Jonathan D. Conant

Regardless of your role in a child welfare or private adoption case, knowing these five aspects of the Interstate Compact on the Placement of Children (ICPC) can keep you out of hot water and prevent the unnecessary return of the child to the jurisdiction of the originating state. (Yes, I said return!)

1. Know Whether the Compact Applies to Your Situation

This is the first and, at times, the most difficult aspect of an interstate placement or adoption. Guidance should absolutely be sought from the ICPC Articles (primarily article VIII) and Regulations (primarily regulations 2, 9, and 12). Generally speaking if a state agency, charitable organization, or private adoption agency is seeking to send a child to another state for the purpose of fostering or adoption, the compact will apply. The compact does not apply to situations where an adult family member of no more than the third line of consanguinity (parents, grandparents, brothers and sisters, aunts and uncles) or non-agency guardians who have the legal authority to do so, seek to place the child in another state with a family member of the child with a relationship of no more than the third line of consanguinity or a non-agency guardian. If a state agency is seeking to place the child, the compact will always apply unless the state seeks to place the child with a non-offending parent under three specific guidelines: (1) the court with jurisdiction has no evidence that the parent is unfit, (2) the court does not seek evidence as to the parent’s fitness, and (3) the court relinquishes jurisdiction over the child immediately upon placement.

2. Know What Documents Are Required

Each and every action under the ICPC—an initial placement, relocation of a placement, and a request to change the placement from foster to adoption—all require an official request and response. A request for action under the ICPC is initiated by the filing of an ICPC Form 100(A). The sending party identifies the child, the sending agency or individual contact information, who the placements are, the type of action requested, and other basic information. No action may take place unless and until the receiving state indicates that the placement may be made by signing and returning the Form 100(A) indicating that the placement may be made. Once an action takes place and the child is in a placement or has been adopted, the sending state must send a completed Form 100(B), which “closes” the action under the ICPC.

Before a state will accept or reject a child, a thorough investigation will take place. Both the case history and the medical history of the child is shared. The placement is fully investigated under the receiving state’s statutory requirements, which will likely include the completion of a home and/or social study. For an agency placement, the documentation requirements are set out in regulation 2.5(a) through (j). For a private adoption, the documents required are set out in regulation 12.5(a)(1) through (16).

Of most importance, know what the individual state that you are dealing with have as their prerequisites and qualifications for a placement. Each state is different. Some will require that a placement be a licensed foster, some states do not. Some states do not require direct family members to be licensed or certified, while others do. For information on each state’s requirements, check the ICPC state pages located here.

3. Know the Players and Your Position in an Application

The administrator of an individual state’s ICPC office will usually be employed in or through the state’s child welfare agency. The ICPC administrator will deal with the other state’s administrator and communicate aspects of an ICPC application. Under the compact administrator, you will find deputy administrators who are charged with the responsibility of actually processing the ICPC applications. They will engage the services of other parties and agencies to conduct the appropriate studies. In the sending state, you will find that the ICPC application generally begins by the child welfare worker who oversees the child’s case requesting that its own state administrator file an ICPC application. The sending state administrator sends the receiving state administrator a completed Form 100(A), and the process beings.

As such, dealing with an ICPC worker is like dealing with any child welfare agency worker: you don’t! They are represented by their own legal departments and possibly the state’s attorney general’s office. Unless you are representing parties in a private placement or private agency assisted adoption, respect the rules of representation and reach out to the appropriate legal representative, rather than to the individual worker.

In a private adoption situation, you may reach out to the receiving state administrator as you will have to complete and process that Form 100(A). However, you may only deal with the administrator and rely upon that person for updates and information unless otherwise directed.

4. Know What Changes Are on the Table, and What YOU Can Do About It

The ICPC is always under consideration for improvement. Right now, there are two main initiatives that will improve the processing of applications.

The “New” ICPC

Maybe not so “new” anymore, there is a revised ICPC that was created to present a new legal framework that would provide for:

  • timely placements across state lines;
  • suitability of prospective family placements/resources;
  • provision of needed support services;
  • narrowing the applicability of the compact to the interstate placement of children in the foster care system and interstate adoptions;
  • requiring the development of time frames for the completion of the approval process;
  • establishing clear rulemaking authority;
  • providing enforcement mechanisms;
  • clarifying state responsibility; and
  • ensuring a state’s ability to purchase home studies for licensed agencies in order to expedite the process.

Of most importance perhaps would be the ability to appeal a decision denying placement through a state’s administrative rules. Right now, there is no appellate right or remedy available for a denial, other than to request a review or submit a new ICPC request.

The “new” ICPC came into existence in 2006. It requires 35 states to pass laws adopting it before it becomes effective. At the current time, only 11 states have enacted it, one state has introduced it, and one state has taken a partial vote to adopt and enact it. We as lawyers can help by reaching out to our legislators to get this back on the table. During 2006, this country and our legislators were pre-occupied with a troubled economy, but now is a good time to focus on child welfare and actually save our states money through the adoption of the “new” ICPC. You can find all the information that you need, including proposed legislative language and talking points, here.

The Institution of NEICE

The National Electronic Interstate Compact Enterprise (NEICE) is a national electronic system designed to quickly and securely exchange data and documents required by the compact. This was undertaken under the authority and in response to H.R. 4472 enacted by Congress on April 4, 2016, which amended the Social Security Act to require states to adopt a centralized electronic system to help expedite the placement of children across state lines. The biggest single benefit to using NEICE is the expediency at which a request and placement can take place. By means of the electronic sharing of data and information, it is possible for all the stakeholders to know what is being done, what needs to be done, and where in the process an application is at any time.

What makes this most intriguing is that each state’s compact administrator will be able to assign permissions to access files. There has recently been developed a “Review Only” module in NEICE for “judicial partners,” but access is regulated in each jurisdiction by the state compact administrator. As counsel for a party or the placement, it is imperative that you lobby your state’s compact administrator for access to files in your specific cases. In this manner you will be able to see what has not yet been done or where the case has stalled which will help you advocate more effectively

Currently there are approximately 19 states actively using NEICE (in addition to LA County, California), 13 states are transitioning to the NEICE platform, and 11 more states are in the process of initiating the procedures necessary to adopt NEICE. Only 10 states remain currently undecided on whether to join, despite the requirement of HR 4472. Experiential data has shown that placement times have been reduced to 46 business days when both states are using the platform.

For more information on NEICE, see here.

5. Know What Information Is Available and Where to Find It

The ICPC is administered by the Association of Administrators of the ICPC (AAICPC). This group is affiliated with the American Public Human Services Association (APHSA).

Of most importance, the AAICPC maintains a page on resources, which includes all documents which are involved in the administration of the ICPC, including information on individual states.

On the resource page, you will find links to the state resources pages, along with a page for California, Colorado, and Ohio—“decentralized” states. These three states are administered on a county by county basis as opposed to having a central location within the state as the other jurisdictions employ.

Jonathan D. Conant is an attorney with an Arizona adoption and placement representation practice, chair of the state bar’s juvenile practice section, and a member of the APHSA. He works with AAICPC on its Performance Improvement Committee as an “ex officio” member.   


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