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Court Rules Against Unnecessary Foster Care Placement

July 25, 2019

A New York State Appellate Court issued a crucial decision on July 16th, finding that the Interstate Compact on the Placement of Children, or ICPC, does not apply when an out-of-state, non-respondent parent seeks custody. The ruling represents a major win against unnecessary foster care placement for children who have a ready and willing parent to offer them a safe and nurturing home. In its decision, the Appellate Division First Department cited an amicus brief submitted by Lawyers For Children and the National Association Counsel of Counsel for Children (NACC).

The appeal, In re Emmanuel B., centered around two-year-old Emmanuel, who was removed from his mother’s home in the Bronx during the course of a child protection proceeding. Subsequently, Emmanuel’s father, who resided in neighboring New Jersey and was not accused of any wrongdoing, sought custody of his son. Rather than immediately place Emmanuel with his father, NYC’s Administration for Children’s Services (ACS) argued that because Emmanuel’s father lived out of state, approval would need to be obtained through the ICPC process, even if there were no concerns regarding the father’s ability to appropriately care for his child. The Bronx Family Court agreed with ACS, and Emmanuel was placed into foster care while an ICPC approval process commenced.

On appeal, LFC and NACC argued in their amicus brief that applying the ICPC to a parent who lives in another state violates the terms and intent of the ICPC, is unconstitutional and harms children. The Appellate Court agreed that applying the ICPC to children in these circumstances is inappropriate and unnecessary, writing:

Finally, we acknowledge the arguments of the amici curiae, Lawyers for Children, Inc., and The National Association of Counsel for Children, who convincingly assert that, based on social science, medical research, and their "on the ground" experience, applying the ICPC to out-of-state parents - given the possibility that the process could keep a child in foster care, and apart from a loving, competent parent - harms children. There is no basis in the law to countenance this potential outcome.

The research cited in the amicus brief includes a statement by the American Academy of Pediatrics, which explains that removing children from their parents can create irreversible damage to a child’s brain development.

In a strong rebuke to ACS and the Family Court, the Appellate Court agreed with our arguments and found that blocking out-of-state parents from taking custody of their children stands directly in contrast to New York State’s policy of keeping families together whenever possible.

The amicus brief was filed on behalf of Lawyers For Children by Board Member Allison Stillman, a partner at Mayer Brown.

Background on the Interstate Compact on the Placement of Children:

The ICPC is a statutory agreement between all states regulating the placement of foster children across state lines. By its plain terms, the ICPC applies to the placement of children in another state in foster care or as a preliminary to a possible adoption, not to parents or other relatives seeking custody. Approval of a placement through the compact can take several months, delaying a child’s placement in an appropriate home. In order to both safeguard children and connect them to permanency resources as swiftly as possible, child advocates across the country have argued that the ICPC should only be applied only in necessary circumstances and delays involved in the process should be minimized in order to reduce harm to children.

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