Overcoming Interstate Adoption Issues

A. What is the Interstate Compact on the Placement of Children?
The Interstate Compact on the Placement of Children (“ICPC”) is a federal law which establishes uniform legal and administrative procedures governing the interstate placement of children. The ICPC is premised on the belief that children requiring out-of-state placement will receive the same protections and services that would be provided if they remained in their home states, and further that all legal requirements are observed. In furtherance of this goal, the ICPC gives the sending state the opportunity to conduct home studies and evaluate the proposed placement. It allows the prospective receiving state the opportunity to determine that the placement is in the child’s best interests and it guarantees both legal and financial protection.

All fifty (50) states, as well as the District of Columbia and the U.S. Virgin Islands are members of the Compact. Each state has codified the ICPC into state law and has a designated Compact Administrator which oversees the process of interstate placements. In Massachusetts, the ICPC is administered by the Department of Children and Families (“DCF”) and regulations governing the ICPC can be found at 110 CMR 7.500 through 7.523, a copy of which is attached.

For the purposes of an adoption, it is illegal to move a child across state lines without meeting the requirements of the ICPC. If a child is born in one state, commonly known as the “sending state” and the adoptive family lives in another state, called the “receiving state”, the adoption placement must be approved by the ICPC. Note, however, that the ICPC does not apply to the sending or bringing a child into a receiving state by his or her parents, step-parent, grandparent, adult brother or sister, adult aunt or uncle, or guardian and leaving the child with any such relative or non-agency guardian in the receiving state.

Responsibilities of sending and receiving States delineated in ICPC include completion of home studies for prospective foster and adoptive parents, supervision of children in interstate placements, legal jurisdiction of cases (which affects both courts and child welfare agencies), financial responsibilities, and reporting requirements. ICPC also outlines procedures for States to follow regarding communication among caseworkers and ICPC administrators in two States, often involving numerous staff in various agencies.

A child may not be taken from one state to another until both the sending state and the receiving states’ ICPC offices have given approval for the placement of the child. First, the sending state must notify the receiving state of its intention to place a child across state lines. This requires the sending state to complete certain forms, including the Interstate Compact Placement Request (ICPC 100A) and extensive documentation. The documentation submitted to the ICPC for approval includes the adoptive parents’ home study, the child’s birth information and other health information, biological information on the birth parents, and relinquishment or termination documentation from the birth parents. Documentation for the child and the adopting parents will be forwarded to the ICPC office in the sending state which will forward the documents to the ICPC office in the receiving state. The ICPC offices review the documentation to verify compliance with their state laws and regulations and make a determination to either approve or deny the placement.

If approved, procedures are initiated to place the child in the receiving state. On average, the processing time from 100A submission to final approval is approximately six days; however, this timeline may vary significantly depending on the completeness of the application. The ICPC process can be complicated and is fact driven. It is not unheard of for an adoptive couple to live in a hotel for several weeks with a new infant pending ICPC approval before returning to their home state. The consequences for failing to comply with the ICPC can be quite severe, including returning the child to the sending state and/or setting aside an adoption. For these reasons, it is highly recommended that adoptive families hire an adoption professional such as adoption attorney or agency to assist with the ICPC process. A proactive attorney or agency can ensure that all necessary requirements are met in a timely manner and avoid the traps of the unwary.

After the ICPC approval, the next step in the process is the adoption finalization. In Massachusetts the child is required to be placed with an adoptive family for six months prior to finalization. Prior to finalization the sending state maintains responsibility for and jurisdiction over the child. Once the child is legally adopted such responsibility is terminated.

The ICPC is currently under revision to reflect updated laws and technology and to better serve its original intent. A new version has been presented to states for ratification and will become law once 35 states have adopted it.

B. Dealing with Conflicts Between State Laws
When ICPC was developed, each participating state joined by passing the same set of laws supporting and specifying the administration of the compact in that state. However, each state had already passed its own laws on child placement and adoption, and these laws have continued to evolve independent of ICPC. This often create conflicts between states involved in an interstate placement as each has a different understanding of the steps required to approve a family as a foster or adoptive family. Two sets of state laws and two judges in two states, each interpreting their own state’s laws (including ICPC laws), lead to inconsistencies and occasional conflicts between sending and receiving states. Because there are no Supreme Court decisions regarding ICPC application, there is no judicial resolution regarding differences in state laws and interpretations of ICPC provisions among member States, further complicating the inter-jurisdictional placement process.

Several problems also have arisen with implementation of the ICPC, including the absence of consistent, clear standards for home studies to assess prospective adoptive families; the lack of enforceable time frames for initiating and conducting evaluations of potential adoptive families; processes for mediating differences between states; and the financial responsibilities of sending and receiving States, such as medical coverage, support services, case supervision, home studies, and special educational costs.

C. Navigating Multistate Adoption Procedures
In an interstate adoption, the birth mother and child reside in a different state than the adoptive family, and the child is taken from one state to another state for the purposes of an adoption placement. There are several variables at play because not only must the ICPC requirements be met, but the legal requirements for each state must also be met. One must navigate multistate adoption procedures with experience, patience, and many times a sense of humor, to ensure a successful interstate placement.

First, unless there is no process to terminate the rights of the birth parents in the sending state, the ICPC prefers, and with some states, insists, that the parental rights be terminated in the sending state. An example of when no procedure exists to terminate parental rights is when some states terminate only in conjunction with the finalization of the adoption. In such instances, the court may not have jurisdiction to terminate the rights, alone. In such cases, Massachusetts may be the state that finalizes. The process involves the birth parent(s) waiving their respective rights under the sending state and submitting to the jurisdiction of Massachusetts for the purposes of terminating their rights in accordance with Massachusetts law. The birth parents must have independent representation to advise them of their rights which they are waiving and be fully informed of the implications of Massachusetts law. The birth parents must sign a jurisdictional statement, acknowledging their full understanding of the implications of the waiver; the voluntariness of their waiver, and that they have been advised by independent counsel.

Part and parcel to the voluntary submission to the jurisdiction of the laws of Massachusetts is the assurance that the birth parents have received all relevant services, as required under Massachusetts law, which may be different from their home state. An excellent example is the allowance of certain birth mother expenses. Massachusetts has strict requirements regarding the payment of expenses.

On the other hand, if, there is no waiver, and the rights are being terminated in accordance with the sending state, the key factor, is complying with the services of the sending state. The sending state may not allow for any birth parent expenses to be paid, or only certain ones, or have no regulations at all.

Massachusetts ICPC wants to ensure that the parental rights have either been fully terminated, or steps have been taken to do so. Meeting that requirement may mean a legal letter of opinion from the attorney of the sending state, and a docket number and copy of the petition, should surrenders or consents not have been signed. In anticipating a case where there may be an unusual circumstance that may require more than the standard ICPC checklist, good practice would be to call the Massachusetts ICPC office to ensure preparation of any further documentation.

Another important factor is the timing of the signing of the surrender, or consent and its consequences. Massachusetts requires at least 4 calendar days pass after the child is born before the surrender may be signed. Thereafter, there is no revocation period. Other states have other time requirements, and many may allow for a revocation for a certain period of times. Some states require no standard to revoke the surrender, while others do.

In all circumstances, one should not “avoid” the ICPC. Consequences may include penalties, fines, loss of the agency’s license, and in some circumstances, the return of the child, and jeopardizing the finalization of the adoption. Above all else, do not cut corners when handling an ICPC case. If the adoption starts to unravel, having a case properly approved by the ICPC can only help.

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