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March 31, 2016

Interstate Compact on Placement of Children Does Not Apply to Out-of-State Placement with Parent

Eva J. Klain

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.

In re S.R.C.-Q, 2016 WL 683242 (Kan. Ct. App.).

In a matter of first impression, the Kansas Court of Appeals ruled the Interstate Compact on Placement of Children (ICPC) applies only to out-of-state placements of children in foster care or preliminary to a possible adoption, not to out-of-state placements with a parent. The trial court did not abuse its discretion when it released the child from the child welfare agency’s custody and placed her with her mother in Wisconsin.

S.R.C.-Q. was born in Wisconsin in 2012, where she and her mother lived with her maternal grandmother. Two years later, father’s paternity was confirmed through testing as part of a paternity case in Kansas. The mother and daughter traveled to Kansas multiple times to spend time with father and eventually relocated to reside with him. 

Shortly after, father filed a petition for protection from abuse, alleging that mother hit him in the head with a knife, threatened to harm herself, and was otherwise dangerous to herself and to the child. The trial court entered a temporary order of protection and placed S.R.C.-Q. in the father’s custody. The court entered a final order of protection from abuse protecting father from mother and ordered temporary custody of S.R.C .-Q. to continue with father pending a final plan in the paternity case.

However, temporary emergency orders later placed S.R.C.-Q. in the child welfare agency’s custody. Mother entered a plea in her criminal case and was sentenced to unsupervised probation. She then moved back to Wisconsin to reside with S.R.C–Q.’s maternal grandmother.

 Mother challenged the district court’s jurisdiction over S.R.C.-Q. under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Through the relevant processes, Wisconsin released jurisdiction to Kansas to determine all matters. The district court then ordered an expedited placement decision from Wisconsin under the provisions of the Interstate Compact on the Placement of Children (ICPC). The ICPC establishes uniform legal and administrative procedures governing the interstate placement of children by nonparents. 

 The Kansas court adjudicated S.R.C.-Q. dependent and agency custody was continued, with the child placed with the paternal grandparents in Kansas. Mother and father each entered into service plans to address mental health, domestic violence, housing, employment, and parenting skills. Mother complied with the requirements of her service plan except for missing two weekly parenting classes. Father did not complete the batterer’s intervention program as ordered.

 In light of Wisconsin’s failure to respond to the district court’s request for a placement decision pursuant to the ICPC, mother asked the Kansas court to determine whether the ICPC applied to the placement of S.R.C.-Q. in Wisconsin. The court determined the ICPC did not apply when a court sends a child to reside with a parent in another state. Despite receiving Wisconsin’s assessment of mother’s home denying placement of S.R.C.-Q. with mother and citing concerns about her cohabitating boyfriend, the court released the agency’s custody and placed the child with the mother, granting father visitation every two weeks for a two-week period. The court required each parent to continue ongoing treatment and dismissed the case. Father and S.R.C.-Q.’s guardian ad litem appealed.

The guardian ad litem and father argued that under the ICPC, an adverse home study of mother’s home by Wisconsin barred the district court from awarding custody of the child to mother. While the terms of the ICPC as enacted in Kansas explicitly apply to out-of-state placements of children with foster parents or as a precursor to adoption, it does not explicitly apply to out-of-state placements of children with a parent. A state regulation, however, explicitly extends application of the ICPC to out-of-state placements of children with parents when a parent is not making the placement.

The GAL and father argued that because the ICPC is to be construed liberally to achieve its purposes and its primary purpose is to protect children, the ICPC should be construed broadly to include placements with a parent. While no Kansas appellate court has decided whether the ICPC applies to out-of-state placements of children with natural parents, courts in other states are divided in their views.

The Kansas version of the ICPC does not state that it applies to placements with parents. Also, the language in the regulation cited by the GAL and father impermissibly enlarges the application of the ICPC to out-of-state placements with parents beyond the plain language of the statute.

In addition, the Kansas court did not abuse its discretion in not following Wisconsin’s recommendation because the report contained only an allegation of unknown origin with no accompanying investigation. Mother correctly asserted she successfully completed the requirements of her case plan. Thus, the trial court did not abuse its discretion in placing S.R.C.-Q. with her mother in Wisconsin.