A PRACTICAL GUIDE TO THE ICPC1 IN GEORGIA PREPARED FOR THE GEORGIA JUVENILE COURT JUDGES (ICJE) FALL, 2004 SEMINAR BY: RANDALL M. KESSLER 2 CEN TENNIAL TOWER 101 MARIETTA STREET, SUITE 3500 ATLANTA, GEORGIA 30303 404.688.8810 WWW.KESSLERSCHWARZ.COM 1Interstate Compact on the Placement of Children 2The presenter, Randall M. Kessler is the founder of Kessler & Schwarz, P.C., a domestic relations law firm in Atlanta, Georgia. Mr. Kessler is the National Chairperson for the Family Courts Committee of the Family Law Section of the American Bar Association and is the former chair of the Family Law Section of the Atlanta Bar Association. Joseph Sullivan, a summer associate at Kessler & Schwarz, P.C., researched and composed the original materials. Karlise Grier, founding partner of the Law Offices of Karlise Grier in Atlanta, Georgia, assisted in the research and composition of these materials. A PRACTICAL GUIDE TO THE INTERSTATE COMPACT on the PLACEMENT of CHILDREN (ICPC) IN GEORGIA The Interstate Compact on the Placement of Children (ICPC or “the Compact”), enacted in 1960 and embodied in the State of Georgia at O.C.G.A. §§ 39-4-1 through 39-4-10, was designed to ensure protection and services to children3 who are placed across state lines for foster care or adoption. The purpose of the Compact is to protect the jurisdictional, administrative, and human rights obligations of all parties involved in an interstate placement.4 By enacting the Compact, the 50 states of the U.S. recognized that children placed outside state borders need the same protections and services that would be provided if they remained in state. In addition, the Compact sought to ensure children a return to their original jurisdictions should placements prove not to be in their best interests or should the need for out-of-state services cease. The Compact is under the umbrella of the American Public Human Services Association (APHSA). The ICPC Secretariat, through APHSA, has issued 10 regulations and forms (discussed later) to 3According to the ICPC, a “child” is defined as “a person, who by reason of minority, is legally subject to parental guardianship or similar control.” Guide to the Interstate Compact on the Placement of Children; (visited 10/4/04); http://icpc.aphsa.org/documents/Guidebook_2002.pdf. 4O.C.G.A. § 34-4-4, Art. I, describes the purpose of the Compact as ensuring that “(a) each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care; (b) the appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child; (c) the proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made; (d) appropriate jurisdictional arrangements for the care of children will be promoted.” 2 implement the law.5 I. A BRIEF HISTORY The need for a compact to regulate the interstate movement of children was recognized in the 1950s. At that time, a group of east coast social service administrators joined informally to study the problems of children moved out of state for foster care or adoption. Among the problems they identified was the failure of importation and exportation statutes enacted by individual states to provide protection for children. The administrators recognized that a state’s jurisdiction ends at its borders and that a state can only compel an out-of-state agency or individual to discharge its obligations toward a child through a compact. The administrators were also concerned that a state to which a child was sent did not have to provide supportive services even though it might agree to do so on a courtesy basis. In response to these and other problems, the Compact was drafted, and in 1960 New York was the first state to enact it.6 II. WHAT THE COMPACT DOES The Compact contains 10 articles, enumerated in the State of Georgia at O.C.G.A. § 39- 4-4. These articles define the types of placements and persons subject to the law, the procedures to be followed in making an interstate placement, and the specific protections, services, and requirements brought by the enactment of the law. The Compact applies to four types of situations in which children may be sent to other states: (1) placement preliminary to an adoption; (2) placements into foster care, including foster 5Guide to the Interstate Compact on the Placement of Children; (visited 7/14/04); http://icpc.aphsa.org/documents/Guidebook_2002.pdf. 6See Supra n. 5. 3 homes, group homes, residential treatment facilities and institutions; (3) placements with parents and relatives when a parent or relative is not making the placement; and (4) placements of adjudicated delinquents in institutions in other states. The Compact mandates that “sending agencies” must use the Compact when they “send, bring, or cause a child to be brought or sent” to another party state. O.C.G.A. § 39-4-4, Art. III(a). The Compact defines a “sending agency” as “a party state, or officer, or employee thereof; a subdivision of a party state, or officer thereof; a court of a party state; a person, corporation, association, charitable agency or other entity which sends, brings or causes to be sent or brought any child to another party state.” O.C.G.A. § 39-4-4, Art, II(b). However, not all placements of children are subject to the provisions in the Compact. In addition, not all persons who place children are subject to the Compact. The Compact does not include placements made in medical and mental health facilities or in boarding schools. The Compact also does not include placements made in “any institution primarily educational in character.” O.C.G.A. § 39-4-4, Art. II(d). The placement of a child into a receiving state made by a parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or the child’s guardian is not covered by the Compact if that person leaves the child with any such relative or non-agency guardian in the receiving state.7 Consequently, Art. VIII(a) of the Compact excludes from coverage placements made from certain individuals to certain enumerated individuals. The wording of the provision, however, is specific in that exclusion from the Compact only occurs when both the placer and the placement recipient belong to the enumerated classes of individuals. For instance, a placement made by a parent to an “adult uncle or aunt” of the child or from one of 7O.C.G.A. § 39-4-4, Art. VIII(a). 4 the other enumerated individuals to a parent is exempt from the compact. The Compact seeks to manage out of state placements in order to provide numerous safeguards to the children of the U.S., as well as to protect any state agency or party involved in the transfer. The Compact provides the sending agency the opportunity to obtain home studies and an evaluation of the proposed placement. The prospective receiving state can ensure that the placement is not “contrary to the interests of the child” and that its applicable law and policies have been followed before it approves the placement. In addition, the Compact guarantees the child legal and financial protection by fixing these responsibilities with the sending agency or individual. Finally, the Compact provides any sending agency the opportunity to obtain supervision and regular reports on the child’s adjustment and progress in the placement. These types of safeguards are routinely available when the child, person, or responsible agency and the placement are all in a single state or jurisdiction. However, when the placement involves two states or jurisdictions, these types of safeguards are only available through the Compact.8 III. PROCEDURES FOR MAKING COMPACT PLACEMENTS When the State of Georgia enacted the Compact, it became law, just as any other legislation passed by the State Legislature. Under the terms of the law, the States agree to follow uniform procedures when they make or accept interstate placements of children. Since the Compact is also a contract among the States, as well as a statute in each of them, it must be interpreted and implemented uniformly by all of the States.9 Georgia has appointed James Graves and John Hutto as Compact Administrators who are 8See Supra n. 5. 9Id. 5 to oversee or perform the day-to-day tasks associated with the administration of the Compact. The Georgia Administrators may be reached at (404) 657-3564 and at: The Division of Family and Child Services, Georgia Department of Human Resources, Atlanta, Georgia, 30303-3180. (See Attachment C for all ICPC Contact Personnel). In every state, the Compact office and personnel are located in an office that is part of the department of public welfare or the state’s equivalent agency. In Georgia, the appropriate location is the Department of Human Resources. The Compact Administrator is designated to serve as the central clearing point for all referrals for interstate placements. The Administrator and his/her deputies are authorized to conduct the necessary investigation of the proposed placement and to determine whether or not the placement is contrary to the child’s interests. After the placement is approved and the child is moved into the state, the Compact Administrator is responsible for overseeing the placement as long as it continues.