Last week, in an appeal to the First District Court of Appeal of Florida (1st DCA), the Court agreed with the Department of Children and Families (Dept.) argument that the Interstate Compact on the Placement of Children (ICPC) does not apply to the placement of children with out-of-state parents and reversed the lower court’s order. In Dep’t of Children & Families v. C.T., 2014 Fla. App. LEXIS 12459 (Fla. 1st DCA 2014), the children were removed from their father’s custody based on allegations of drug use and parental neglect. After the children were adjudicated dependant and during the pendency of the parental case plans, the father relocated to Maryland where he attended drug rehabilitation. In a status hearing, the father traveled from Maryland back to Florida and was told by a judge that he would likely be reunified with the children at the end of the school year because of his compliance with the case plan and drug program.
The acting guardian of the children, the maternal grandmother, asserted an unwillingness to continue as a custodian should the children be returned to the father only to be removed again in the future. Interpreting this to mean she was unwilling to continue as custodian even for the rest of the school year, the lower court then determined the children should be reunified with the father in Maryland right away. The Dept. objected to the immediate placement and had not yet completed the ICPC process whereby Maryland authorities would conduct an investigation to determine any safety concerns that may arise if the children were to be immediately placed back with the father.
The lower court found that the ICPC does not apply when children are placed with out-of-state parents, and ordered reunification with the father. The ICPC was adopted by Florida and codified in section 409.401. It applies when a court of a party state places a child in a receiving state. Placement is defined as: “the arrangement for the care of a child in a family tree or boarding home or in a child-caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility.” It does not apply to the sending or bringing of a child into a “receiving state by a parent . . . or a guardian and leaving the child with any such relative or non-agency guardian in the receiving state.”
The 1st DCA found that the ICPC does not apply when a custodial parent, who has lawful custody of the child at all pertinent times and full authority to plan for the child, chooses to relocate to another state. In other words, the ICPC is inapplicable to the sending or bringing of a child into a receiving state by a parent.
The 1st DCA also cited a Fifth District Court of Appeal’s decision in H.P. v. Dep’t of Children & Families, 838 So. 2d 583, 586 (Fla. 5th DCA 2003), in which the Court found the ICPC applies to the interstate placements with parents if a child is under the jurisdiction of the juvenile or family court, the court has assumed responsibility to determine where the child will reside, and until such time as the interrupted parent-child relationship is restored and the state’s intervention is ended. “When a court takes such control over a child, the living status is that of a placement.” In such circumstances, the parent’s situation is the same as the position of a foster parent, meaning both are caregivers only because of the authority conferred to them by the state acting through the court. Once a court has legal custody of a child, it would be negligent to relinquish that child to an out-of-state parent without some indication that the parent is able to care for the child appropriately.
Here, the 1st DCA clarified their position and held that the children here were under the jurisdiction of the court, which means the court assumed responsibility to determine where the children would reside, and the State’s intervention had not yet ended. Consequently, the ICPC did apply and the lower court violated the ICPC by sending the children to Maryland without complying with the ICPC Conditions of Placement under Fla. Stat. § 409.401, art. III.
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