June 01, 2014

Foster Kids in Limbo: The Effects of the Interstate Compact on Children in Foster Care

Vivek S. Sankaran

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

“My personal experiences with the ICPC process can best be described as mystifying and frustrating. In the words of one of my fellow jurists, ‘ICPC cases seem to go into a black hole.’” —Juvenile Court Judge

Each year, child welfare agencies make over 40,000 requests for home studies to determine whether children in foster care can be placed with parents, relatives, and others living in another state.

Each request is governed by the Interstate Compact on the Placement of Children (ICPC), a uniform law adopted by every state to coordinate the placement of foster children in other states. Under the ICPC, a child can only be placed in foster care in another state after the receiving state conducts a home study and approves the proposed placement.

Despite its good intentions, the ICPC has become unworkable. It contains no specific deadlines for completing interstate home studies. It does not set clear standards for how child welfare agencies must evaluate potential placements. It allows child welfare agencies to deny placements with parents and relatives for seemingly arbitrary reasons. And it prohibits courts from reviewing placement denials yet fails to provide administrative procedures for parents and relatives seeking an independent review of a denial.

A study I performed with support from the Annie E. Casey Foundation sought to gain a better understanding of these problems by obtaining data from states to answer basic questions about the ICPC:

  • How many children are affected by the ICPC each year?
  • What sorts of placements are most commonly impacted by the ICPC?
  • How long do home studies take?
  • Why, and how frequently, are potential placements denied following home studies?
  • How can home study denials be reviewed or appealed?

Data was requested from each state to answer these questions. Twenty-seven states responded. The results follow.

The ICPC Affects Thousands of Children Each Year

Child welfare agencies make approximately 40,000 ICPC home study requests each year. These agencies make the most requests for home studies of relatives. Potential placements with birth parents, adoptive parents, and foster parents receive roughly equal requests for home studies.

Delays in Completing ICPC Home Studies are Routine

Policies guiding the completion of ICPC home studies require home studies to be completed within 30 business days. Yet, only 30% of home studies are completed within this time period. Federal law requires states to complete interstate home studies within 60 days, but this only occurs in about 45% of cases. Approximately 30% of home studies take longer than 90 days to complete.

Home studies involving birth parents take months to complete. In one state, the average length of time it took to complete an ICPC home study of a birth parent was 68 days. In another state, over 76% of parent home studies took longer than 30 days. Forty-three percent took longer than 60 days.

ICPC Home Studies are Routinely Denied

Child welfare agencies deny roughly 40% of all ICPC placement requests. Home studies may be denied for arbitrary reasons. Very few states have different standards for evaluating homes of parents or relatives than those that exist for other types of foster placements. Despite the fundamental constitutional right of a parent and child to live together, the following reasons were cited to deny parent home studies:

  • “insufficient living space”
  • “unstable housing”
  • “parent would have to sleep on the couch to accommodate children.”
  • “the client does not meet qualification due to shared housing.”
  • “financially fragile”

Home Studies of Parents May be Denied at a Higher Rate

Specific data from two states suggest that parents and relatives may face higher than average denial rates. For example, in Tennessee, the average denial rate for incoming ICPC requests over a six-year reporting period was 58% for parents and 46.4% for relatives. The total average denial rate for all placement types was 35%.

In Pennsylvania, parents also faced a higher denial rate. In 2009-2010, the parent denial rate was 60% and in 2010-2011, the parent denial rate was 66%. The total denial rate for all home studies in both years was significantly lower.

ICPC Home Study Denials are Unreviewable by Judges or Administrative Hearing Officers in Most States 

There is no law or policy that requires an external, independent review of an ICPC home study denial. Most states have administrative appeal procedures within the state child welfare agency for foster parents whose licenses have been revoked or denied. But parents and relatives denied of the right to care for their kin have no administrative procedure to challenge a placement denial. Thus, in many states, potential licensed foster care placements actually have more administrative rights than parents and relatives, even though foster parents have no constitutional rights with respect to the children in their care. The ICPC explicitly prohibits courts from reviewing home study denials.

Conclusion

The ICPC is an antiquated system that needs to be overhauled to protect the best interests of children in foster care. The data and findings in this study paint a picture of a broken system affecting thousands of children each year. Roughly 40,000 children each year are subject to the interstate home study process. Many of these children likely remain in foster care unnecessarily while the lengthy ICPC home study process is completed. These delays can cause major problems for children who are waiting in temporary foster care or other placements.

Additionally, a high number of ICPC placement requests, including placements with birth parents are denied. This raises major questions about how the system operates. And, this denial rate highlights the major constitutional questions surrounding the application of the ICPC to parents. The Constitution demands that parents be presumed fit absent a judicial finding to the contrary. That a state agency, without any judicial finding of unfitness, could summarily declare a parent unfit to care for his or her child is a serious constitutional problem; that it apparently happens so frequently without any administrative or judicial review is evidence that the ICPC system is in serious need of reform.

 

Vivek S. Sankaran, JD, is a clinical professor of law at the Child Advocacy Law Clinic, University of Michigan School of Law.

This article was adapted and reprinted with permission from the author. The original was a report to the Annie E. Casey Foundation.

Checklist: Needed Reforms

Some changes that could improve handling of child welfare cases that cross state lines are:

  • Impose specific and enforceable deadlines for completing ICPC home studies.

  • Rest authority with the juvenile court to make all placement decisions.

  • Allow states to continue to supervise placements and provide services to children if juvenile courts order placements over their objection.

  • Require expedited home studies when placements involve birth parents.

  • Require electronic transmission of ICPC documents.