NY's Highest Court Limits Reach of Interstate Pact to Foster Care, Adoption Cases

The decision paves the way for children to be allowed to leave New York to live with a noncustodial parent outside of New York's boundaries.

by Brian Lee

Family courts can place a child who’s been removed from her custodial parent’s home in New York with a noncustodial, out-of-state parent, if the latter’s home is suitable, the state Court of Appeals said Tuesday in a unanimous ruling that limits an interstate agreement for foster care and preliminary adoption that had overreached into familial blood lines.

According to the opinion written by Acting Chief Judge Anthony Cannataro, the Interstate Compact on the Placement of Children states clearly that it should only be applied to foster care and preliminary adoptive homes, and not the child’s out-of-state parent.

The decision paves the way for children to be allowed to leave New York to live with a noncustodial parent.

The case involved a child who had been removed from the mother’s home in Suffolk County in 2012 due to neglect.Her father, a North Carolina resident, was not accused of wrongdoing and fought for her custody.The decision, captioned D.L. v. S.B., reversed an appellate court’s ruling.

Cannataro’s writing cited court rulings in Kentucky, Maryland, New Hampshire, Arkansas, Oregon, Indiana, and California.

An amicus brief filed by Lawyers for Children, a nonprofit agency that protects the rights of foster care children in New York City, The Legal Aid Society, and the Children’s Law Center, said cases like this come before Family Courts every day, and following a long line of precedent and constitutional principles, the courts generally grant custody to the nonoffending parent, unless their rights were terminated or the parent was deemed unfit.

Karen Freedman, executive director of Lawyers for Children said:

“The Court of Appeals decision marks a critical step in the process of recalibrating government intrusion into the lives of children and their families. We know from the vast body of evidence and through our representation of children and youth that the separation of children from their parents can be tremendously harmful and is often completely unnecessary. By removing the ICPC’s bureaucratic impediments to placing children with parents who live in another state, more children can be quickly and safely reunited with family instead of experiencing protracted stays in foster care.”

Christine Gottlieb, director of New York University’s School of Law Family Defense Clinic, argued the case on behalf of the North Carolina parent through a collaboration.

“It was children’s advocates, parents’ advocates and the private bar coming together to say we have to stop this,” said Gottlieb, adding it was the first time she had argued before the New York Court of Appeals.

She credited the work of attorney Scott Eisman of the global law firm Freshfields Bruckhaus Deringer, who served as co-counsel.

James G. Bernet, who represented the Suffolk County Department of Social Services, could not be reached for comment.

A spokesman for the Association of Administrators of the Interstate Compact on the Placement of Children did not return a message Tuesday.

Gottlieb, citing literature in academia, said the compact has kept a New York child from a noncustodial parent in another state for reasons such as the requester sleeping in his living room rather than his bedroom; income; and whether he owned a car—criteria that’s taken into account when assessing a foster parent.

In the North Carolina man’s case, the child remained in foster care with the goal of reuniting with the mother, while the father maintained contact with and continued visiting the child, arguing it was in the child’s interests for him to be awarded sole custody.

Gottlieb said that in cases such as this one, “bureaucratic hoops” often prevent a child from being placed with the out-of-state noncustodial parent, even if that parent is in a nearby state such as New Jersey, Massachusetts, or Connecticut; or even if the child had already been visiting the parent, or the child’s sibling lives with the noncustodial parent.

Over the years, the compact administrators expanded the reach of the compact and imposed bureaucratic requirements, allowing the foster system to ensnare thousands of children who could have been living with a parent, where there were no allegations that it wouldn’t be safe for the children, she said.

The NYU Law School’s Family Defense Clinic trains law and social work students to represent parents and keep families together, mindful of “a growing recognition that the child welfare system, like many government systems, often overreaches, and it particularly overreaches into low-income, Black and brown communities,” Gottlieb said.

“All the advocates, I think worked on it because these harms were being inflicted on low-income families of color that it was allowed to go on for so long,” Gottlieb said, adding what she described as separations of families at the U.S. border that weren’t necessary under former President Donald Trump’s administration.

“There’s a visceral reaction; everyone knows that’s one of the worst things the government can do—the worst abuses of government power—is to unnecessarily separate a child and a parent. Yet this was going on for for decades in New York.”

Gottlieb said it’s “a story about ensuring that all families get the benefit of the right to family integrity.”