State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 76 In the Matter of D.L., Appellant, v. S.B. et al., Respondents.
Christine Gottlieb, for appellant. James G. Bernet, for respondent Suffolk County Department of Social Services. Lawyers for Children, Inc. et al.; New York City Administration for Children's Services, amici curiae.
CANNATARO, Acting Chief Judge:
The Interstate Compact on the Placement of Children (ICPC or Compact) is an
agreement among the states to follow certain procedures in connection with sending
children across state borders “for placement in foster care or as a preliminary to a possible
-1- -2- No. 76
adoption” (Social Services Law § 374-a [1] [art III] [a]). The issue raised on this appeal is
whether the ICPC applies to out-of-state, noncustodial parents seeking custody of their
children who are in the custody of New York social services agencies. We hold that it does
not.
I.
Petitioner father, a North Carolina resident, and respondent mother, a New York
resident, are the parents of the subject child. In 2012, respondent Suffolk County
Department of Social Services (DSS) removed the child from the custody of mother, who
admitted neglecting the child, and placed the child in foster care. Father exercised his
right to appear in the neglect proceeding and, in 2013, an application was made under the
ICPC to North Carolina for the approval of father’s home in that state as a suitable
placement for the child. The relevant North Carolina authority denied the ICPC request.
The child remained in foster care with the goal of reunification with mother and, according
to father, he maintained contact with and continued to visit with the child. Thereafter, in
2017, father commenced these custody proceedings, arguing that it was in the child’s best
interests to award him sole custody. DSS argued that the child could not be placed with
father in light of the North Carolina authority’s 2013 refusal to consent to the placement.
Family Court dismissed father’s petitions without conducting a hearing. The court
held in pertinent part that the requirements of the ICPC applied to placement of the child
with father, even though he is an out-of-state noncustodial parent, because the child was in
the custody and care of DSS in New York. The court also rejected father’s claim that the
ICPC is unconstitutional to the extent that it purports to apply to a noncustodial parent’s -2- -3- No. 76
petition for custody of that parent’s child. Father appealed.
The Appellate Division affirmed (183 AD3d 565 [2nd Dept 2020]), holding that
Family Court properly determined that the ICPC applied because “the child was in the
custody of DSS and . . . father resided in North Carolina” (id. at 566). The Court concluded
that the petitions for custody were correctly dismissed without a hearing inasmuch as the
relevant North Carolina authority denied approval of father’s 2013 ICPC request (id.).
We granted father leave to appeal (37 NY3d 901 [2021]) and now reverse.1
II.
The ICPC is an agreement among the 50 states, the District of Columbia, and the
U.S. Virgin Islands. It is a non-federal agreement and is “construed as state law” in each
adopting state (McComb v Wambaugh, 934 F2d 474, 479 [3d Cir 1991]). Governor
Rockefeller approved New York’s entry into the ICPC, which has since been codified in
Social Services Law § 374-a (see Governor’s Approval Mem, Bill Jacket, L 1960, ch 708).
The ICPC governs the “interstate placement of children” (Social Services Law §
374-a [1] [art I]) and “was designed to promote cooperation among [s]tates in providing
each child with the maximum opportunity to be placed in a suitable environment with
persons or institutions having appropriate qualifications and facilities to provide a
necessary and desirable degree and type of care” (Matter of Shaida W., 85 NY2d 453, 458
1 This appeal is now moot because, among other things, during its pendency, father surrendered his parental rights to the subject child in this case. We nevertheless review the significant issue raised under the exception to the mootness doctrine (see City of New York v Maul, 14 NY3d 499, 507 [2010]; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714- 715 [1980]). -3- -4- No. 76
[1995] [internal quotation marks, ellipsis, brackets, and citation omitted]). The Compact
was further intended to provide a state receiving a child with a “full opportunity to ascertain
the circumstances of the proposed placement, thereby promoting full compliance with
applicable requirements for the protection of the child” (Social Services Law § 374-a [1]
[art I] [b]) and to enable a sending state to “obtain the most complete information on the
basis of which to evaluate a projected placement before it is made” (id. § 374-a [1] [art I]
[c]). The ICPC also promotes “‘appropriate jurisdictional arrangements for the care of the
children involved’” (Matter of Shaida W., 85 NY2d at 459, quoting Mem of Jud Conf of
State of NY, Bill Jacket, L 1960, ch 708) and “was designed to prevent States from
unilaterally ‘dumping’ their foster care responsibilities on other jurisdictions” (id.).
The ICPC provides at the outset that it applies when a state agency seeks to send
children to a receiving state to be placed in foster care or for possible adoption.
Specifically, article III of the ICPC provides:
“(a) No sending agency shall send . . . into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article . . .
“(b) Prior to sending . . . any child . . . into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice . . .” (emphasis added).
(Social Services Law § 374-a [art III] [a], [b]). “Placement,” in turn, is defined as “the
arrangement for the care of a child in a family free or boarding home or in a child-caring
agency or institution” (id. § 374-a [art II] [d]).
-4- -5- No. 76
The Appellate Division Departments have disagreed regarding the applicability of
the ICPC to noncustodial parents who reside outside New York. The Second Department
has repeatedly applied the ICPC to out-of-state noncustodial parents, holding that “[w]here
the custody of a child who is under the supervision of the Commissioner [of Social
Services] is transferred to the custody of a parent or relative in another state, the provisions
of the ICPC apply” (Matter of Alexus M. v Jenelle F., 91 AD3d 648, 650-651 [2d Dept
2012]; see Matter of Faison v Capozello, 50 AD3d 797, 797 [2d Dept 2008]; Matter of
Tumari W. v Lynell W., 65 AD3d 1357, 1358-1359 [2d Dept 2009]; Matter of Keanu Blue
R., 292 AD2d 614, 614-615 [2d Dept 2002]). By contrast, the First Department has
expressly declined to follow the Second Department’s interpretation of the ICPC and,
instead, has held that the ICPC “does not apply” to out-of-state noncustodial parents,
reasoning that the plain language of the ICPC limits its application to placements in foster
care or adoptive settings (Matter of Emmanuel B. [Lynette J.], 175 AD3d 49, 52 [2019], lv
dismissed 34 NY3d 1036 [2019]). The Third Department has recently endorsed the First
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State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 76 In the Matter of D.L., Appellant, v. S.B. et al., Respondents.
Christine Gottlieb, for appellant. James G. Bernet, for respondent Suffolk County Department of Social Services. Lawyers for Children, Inc. et al.; New York City Administration for Children's Services, amici curiae.
CANNATARO, Acting Chief Judge:
The Interstate Compact on the Placement of Children (ICPC or Compact) is an
agreement among the states to follow certain procedures in connection with sending
children across state borders “for placement in foster care or as a preliminary to a possible
-1- -2- No. 76
adoption” (Social Services Law § 374-a [1] [art III] [a]). The issue raised on this appeal is
whether the ICPC applies to out-of-state, noncustodial parents seeking custody of their
children who are in the custody of New York social services agencies. We hold that it does
not.
I.
Petitioner father, a North Carolina resident, and respondent mother, a New York
resident, are the parents of the subject child. In 2012, respondent Suffolk County
Department of Social Services (DSS) removed the child from the custody of mother, who
admitted neglecting the child, and placed the child in foster care. Father exercised his
right to appear in the neglect proceeding and, in 2013, an application was made under the
ICPC to North Carolina for the approval of father’s home in that state as a suitable
placement for the child. The relevant North Carolina authority denied the ICPC request.
The child remained in foster care with the goal of reunification with mother and, according
to father, he maintained contact with and continued to visit with the child. Thereafter, in
2017, father commenced these custody proceedings, arguing that it was in the child’s best
interests to award him sole custody. DSS argued that the child could not be placed with
father in light of the North Carolina authority’s 2013 refusal to consent to the placement.
Family Court dismissed father’s petitions without conducting a hearing. The court
held in pertinent part that the requirements of the ICPC applied to placement of the child
with father, even though he is an out-of-state noncustodial parent, because the child was in
the custody and care of DSS in New York. The court also rejected father’s claim that the
ICPC is unconstitutional to the extent that it purports to apply to a noncustodial parent’s -2- -3- No. 76
petition for custody of that parent’s child. Father appealed.
The Appellate Division affirmed (183 AD3d 565 [2nd Dept 2020]), holding that
Family Court properly determined that the ICPC applied because “the child was in the
custody of DSS and . . . father resided in North Carolina” (id. at 566). The Court concluded
that the petitions for custody were correctly dismissed without a hearing inasmuch as the
relevant North Carolina authority denied approval of father’s 2013 ICPC request (id.).
We granted father leave to appeal (37 NY3d 901 [2021]) and now reverse.1
II.
The ICPC is an agreement among the 50 states, the District of Columbia, and the
U.S. Virgin Islands. It is a non-federal agreement and is “construed as state law” in each
adopting state (McComb v Wambaugh, 934 F2d 474, 479 [3d Cir 1991]). Governor
Rockefeller approved New York’s entry into the ICPC, which has since been codified in
Social Services Law § 374-a (see Governor’s Approval Mem, Bill Jacket, L 1960, ch 708).
The ICPC governs the “interstate placement of children” (Social Services Law §
374-a [1] [art I]) and “was designed to promote cooperation among [s]tates in providing
each child with the maximum opportunity to be placed in a suitable environment with
persons or institutions having appropriate qualifications and facilities to provide a
necessary and desirable degree and type of care” (Matter of Shaida W., 85 NY2d 453, 458
1 This appeal is now moot because, among other things, during its pendency, father surrendered his parental rights to the subject child in this case. We nevertheless review the significant issue raised under the exception to the mootness doctrine (see City of New York v Maul, 14 NY3d 499, 507 [2010]; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714- 715 [1980]). -3- -4- No. 76
[1995] [internal quotation marks, ellipsis, brackets, and citation omitted]). The Compact
was further intended to provide a state receiving a child with a “full opportunity to ascertain
the circumstances of the proposed placement, thereby promoting full compliance with
applicable requirements for the protection of the child” (Social Services Law § 374-a [1]
[art I] [b]) and to enable a sending state to “obtain the most complete information on the
basis of which to evaluate a projected placement before it is made” (id. § 374-a [1] [art I]
[c]). The ICPC also promotes “‘appropriate jurisdictional arrangements for the care of the
children involved’” (Matter of Shaida W., 85 NY2d at 459, quoting Mem of Jud Conf of
State of NY, Bill Jacket, L 1960, ch 708) and “was designed to prevent States from
unilaterally ‘dumping’ their foster care responsibilities on other jurisdictions” (id.).
The ICPC provides at the outset that it applies when a state agency seeks to send
children to a receiving state to be placed in foster care or for possible adoption.
Specifically, article III of the ICPC provides:
“(a) No sending agency shall send . . . into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article . . .
“(b) Prior to sending . . . any child . . . into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice . . .” (emphasis added).
(Social Services Law § 374-a [art III] [a], [b]). “Placement,” in turn, is defined as “the
arrangement for the care of a child in a family free or boarding home or in a child-caring
agency or institution” (id. § 374-a [art II] [d]).
-4- -5- No. 76
The Appellate Division Departments have disagreed regarding the applicability of
the ICPC to noncustodial parents who reside outside New York. The Second Department
has repeatedly applied the ICPC to out-of-state noncustodial parents, holding that “[w]here
the custody of a child who is under the supervision of the Commissioner [of Social
Services] is transferred to the custody of a parent or relative in another state, the provisions
of the ICPC apply” (Matter of Alexus M. v Jenelle F., 91 AD3d 648, 650-651 [2d Dept
2012]; see Matter of Faison v Capozello, 50 AD3d 797, 797 [2d Dept 2008]; Matter of
Tumari W. v Lynell W., 65 AD3d 1357, 1358-1359 [2d Dept 2009]; Matter of Keanu Blue
R., 292 AD2d 614, 614-615 [2d Dept 2002]). By contrast, the First Department has
expressly declined to follow the Second Department’s interpretation of the ICPC and,
instead, has held that the ICPC “does not apply” to out-of-state noncustodial parents,
reasoning that the plain language of the ICPC limits its application to placements in foster
care or adoptive settings (Matter of Emmanuel B. [Lynette J.], 175 AD3d 49, 52 [2019], lv
dismissed 34 NY3d 1036 [2019]). The Third Department has recently endorsed the First
Department’s approach, albeit in dicta (see Matter of David Q. v Schoharie County Dept.
of Social Servs., 199 AD3d 1179, 1181 n [3d Dept 2021], lv denied 38 NY3d 901 [2022]).
We are now called on to resolve the disagreement regarding ICPC applicability to
noncustodial parents.
III.
“It is fundamental that a court, in interpreting a statute, should attempt to effectuate
the intent of the [l]egislature” and, because “the clearest indicator of legislative intent is
the statutory text, the starting point in any case of interpretation must always be the
-5- -6- No. 76
language itself, giving effect to the plain meaning thereof” (Majewski v Broadalbin–Perth
Cent. School Dist., 91 NY2d 577, 583 [1998] [internal quotation marks and citation
omitted]). Moreover, “where the statutory language is clear and unambiguous, the court
should construe it so as to give effect to the plain meaning of the words used” (Patrolmen’s
Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). “‘Absent
ambiguity the courts may not resort to rules of construction to [alter] the scope and
application of a statute’ because no such rule ‘gives the court discretion to declare the intent
of the law when the words are unequivocal’” (Kuzmich v 50 Murray St. Acquisition LLC,
34 NY3d 84, 91 [2019], cert denied ___ US ___, 140 S Ct 904 [2020], quoting Bender v
Jamaica Hosp., 40 NY2d 560, 562 [1976]).
By its terms, the ICPC governs the out-of-state “placement” of children “in foster
care or as a preliminary to possible adoption” (Social Services Law § 374-a [1] [art III] [a]
& [b]). The language of the statute thus unambiguously limits its applicability to cases of
placement for foster care or adoption—which are substitutes for parental care that are not
implicated when custody of the child is granted to a noncustodial parent. Indeed, applying
the ICPC to noncustodial parents would be inconsistent with the statutory requirement that,
when a child is placed pursuant to the ICPC, “[t]he sending agency shall continue to have
financial responsibility for support and maintenance of the child during the period of the
placement” (Social Services Law § 374–a [1] [art V] [a]). As the United States Court of
Appeals for the Third Circuit observed, “[t]o construe the return of a child to [a] parent as
a ‘placement’ within the Compact would result in the anomalous situation of imposing a
financial obligation upon a sending state that supersedes parents’ duty to support their
-6- -7- No. 76
children” (McComb, 934 F2d at 480). In short, as many courts in other states have
concluded, there is nothing in the statutory language to indicate that the ICPC was intended
to apply to out-of-state parents seeking custody of their children and the statutory text
confines application of the ICPC to children placed in foster care or preliminary adoptive
homes (see e.g. A.G. v Cabinet for Health and Family Services, 621 SW3d 424, 432 [Ky
2021]; In re R.S., 470 Md 380, 404, 235 A3d 914, 928 [2020]; In re Emoni W., 305 Conn
723, 735, 48 A3d 1, 7 [2012]; In re Alexis O., 157 NH 781, 787, 959 A2d 176, 182 [2008];
Arkansas Dept. of Human Services v Huff, 347 Ark 553, 563, 65 SW3d 880, 888 [2002];
McComb, 934 F2d at 481; Matter of J. B., 310 Or App 729, 744, 489 P3d 598, 607 [Or Ct
App 2021]; Matter of B.L.P., 91 NE3d 625, 630 [Ind Ct App 2018]; In re C.B., 188 Cal
App 4th 1024, 1032, 116 Cal Rptr 3d 294, 299 [Cal Ct App 2010]).
Our decision in Matter of Shaida W. (85 NY2d 453 [1995]) does not compel a
contrary conclusion. In that case, the question before the Court was whether the ICPC
applied when children, who were in the care and custody of a New York social services
agency, were taken to another state by their grandmother after the agency placed the
children into temporary foster care with the grandmother. Although article VIII (a)
provides that the ICPC does not apply to “[t]he sending or bringing of a child into a
receiving state by [a] parent, step-parent, grandparent, adult brother or sister, adult uncle or
aunt, or [a] guardian and leaving the child with any such relative or non-agency guardian
in the receiving state” (Social Services Law § 374–a [1] [art VIII] [a]), we explained that
“the children were not legally ‘sent’ to California by their grandmother” (Matter of Shaida
W., 85 NY2d at 460). Rather, “[t]he official custodian” of the children was the
-7- -8- No. 76
“Department of Social Services of New York City,” and it was the agency that “authorized
the children to be ‘sent’” to California within the meaning of the statute (id.). That is, the
children were sent by a social services agency to a “kinship foster care placement” in
another state (Matter of Emmanuel B., 175 AD3d at 58) and, as such, this Court concluded
that the ICPC applied (Matter of Shaida W., 85 NY2d at 460-461). Here, in contrast,
placing a child with an out-of-state parent does not involve foster care or adoption and,
thus, Shaida W. does not control.
IV.
Our reading of the ICPC as being applicable only to placement of a child for foster
care or as a preliminary to adoption, and not to custody of a noncustodial parent, comports
with the intent reflected in the Compact’s legislative history and the underlying statutory
purpose. “[N]othing in the language of the statute or the legislative history . . . indicate[s]
that the ICPC was ever intended to address any individual other than an out-of-state foster
or adoptive parent” (Matter of Emmanuel B., 175 AD3d at 56 [citations omitted]; see also
Mem of Dept of Social Welfare, Bill Jacket, L 1960, ch 708, at 23 [explaining that the
ICPC was intended to regulate the sending of children out of state “for placement in foster
care” and “for the purpose of adoption”]; Budget Rep. on Bills, id. at 12 [observing that
the statute “would broaden the placement field and provide greater opportunity for the
placement in foster homes or adoption homes of the children in institutions”]). Further, an
interpretation of the ICPC as applicable to noncustodial parents would be inconsistent with
other components of New York’s statutory framework governing child protection (see
Matter of Jamie J. [Michelle E.C.], 30 NY3d 275, 284 [2017]), which overwhelmingly
-8- -9- No. 76
reflects “the preeminence of the biological family” (Matter of Michael B., 80 NY2d 299,
313 [1992]) and “embrace[s] a policy of keeping biological families together” whenever
safely possible (Nicholson v Scoppetta, 3 NY3d 357, 374 [2004] [internal quotation marks
omitted]; see Social Services Law § 384-b [1] [ii]). In that regard, this Court has long
acknowledged the Legislature’s “fundamental social policy choice[,] . . . binding on this
Court” to structure New York’s foster care scheme around the right of parents “to the care
and custody of a child, superior to that of others, unless the parent has abandoned that right
or is proven unfit” (Matter of Michael B., 80 NY2d at 308–09).2
We recognize that our interpretation of the ICPC conflicts with “Regulation 3”
promulgated by the Association of Administrators of the Interstate Compact on the
Placement of Children (AAICPC). Specifically, the AAICPC—an entity comprised of
officials designated by each member state to coordinate ICPC matters (see Social Services
Law § 374-a [art VII])—amended Regulation 3 (2) (a) to “provide guidance in navigating
the ICPC regulations and to assist its users in understanding which interstate placements
are governed by, and which are exempt from, the ICPC” (American Public Human
Services, ICPC Regulations, https://aphsa.org/AAICPC/Resources.aspx [last accessed, Oct
18, 2022]]). Regulation 3, as amended effective October 1, 2011, states in pertinent part
that compliance with the ICPC is required for “Placements with parents and relatives when
2 This Court has also recognized that “[t]he State may not deprive a natural parent of the right to the care and custody of a child absent a demonstration of abandonment, surrender, persisting neglect, unfitness or other like behavior evincing utter indifference and irresponsibility to the child's well-being” (Matter of Marie B., 62 NY2d 352, 358 [1984]; see Matter of Bennett v Jeffreys, 40 NY2d 543, 545-546 [1976]). -9- - 10 - No. 76
a parent or relative is not making the placement” (id. [emphasis added]). However, in light
of our conclusion that the relevant text of the ICPC unambiguously confines its application
to foster care and preliminary adoptive homes, Regulation 3 (2) (a) is inconsistent with its
enabling legislation and, therefore, could not be given effect (cf. Matter of General Elec.
Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254
[2004] [an agency cannot adopt regulations that are “inconsistent with the statutory
language or its underlying purposes”]; see Matter of R.S., 470 Md at 404, 412 [“(A)ny
regulation purporting to expand the application of the ICPC to out-of-state placements with
a non-custodial, noncustodial parent is impermissible and will not be given the force of
law”]; Matter of Emoni W., 305 Conn at 740-742; Matter of Alexis O., 157 NH at 787, 789;
Ark. Dept. of Human Servs., 347 Ark at 563; McComb, 934 F2d at 481-482).3
Although the ICPC does not apply to placement with a parent, the Family Court Act
contains other effective means to ensure the safety of a child before awarding custody to
an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has
a broad array of powers under the Family Court Act to ensure a child’s safety. Among
other things, Family Court can hold hearings and request courtesy investigations and
reports from the local social service agencies or department of probation in order to make
determinations regarding a child’s best interests. Additionally, rather than awarding an
out-of-state parent full custody, Family Court Act § 1052 (a) provides for other
dispositional options, including release to a parent with supervision. Similarly, Family
3 The parties here have not raised a challenge to the validity or the legal effect of AAICPC Regulation 3. - 10 - - 11 - No. 76
Court may grant a temporary order of custody or guardianship to a noncustodial parent (see
Family Court Act § 1017 [2] [a] [i]; see also § 1055), which requires that a parent submit
to Family Court’s continuing jurisdiction and comply with the terms and conditions of the
court’s order—which may include making the child available for visits with social services
officials (see Family Ct Act § 1017 [3]). In such instances, the case remains on the court’s
calendar and the court maintains jurisdiction over the case until the child is discharged from
placement and all orders regarding supervision, protection or services have expired (see
Family Ct Act § 1088).
VI.
In conclusion, giving effect to the clear language of the ICPC as codified in Social
Services Law § 374-a, we hold that the ICPC does not apply to out-of-state noncustodial
parents seeking custody of their children. Accordingly, the order of the Appellate Division
should be reversed, without costs, and the petitions reinstated.
Order reversed, without costs, and petitions reinstated. Opinion by Acting Chief Judge Cannataro. Judges Rivera, Garcia, Wilson, Singas and Troutman concur.
Decided October 25, 2022
- 11 -