Opinion
16-13494 16-14953
03-14-2018
In Re the Matter Of: Department of Services for Children, Youth and Their Families, Division of Family Services, Petitioner, v. B.T.B. and M. B. Respondents. In Re the Matter Of: N.F., Petitioner, v. Department of Services for Children, Youth and Their Families, Division of Family Services, B.T.B. and M.B., Respondents.
File No.
Petition No. ORDER-Permanency Review Hearing
DEPENDENCY/NEGLECT PETITION FOR CUSTODY In the Interests Of:
T.B.
DOB: ORDER-Guardianship Hearing
DEPENDENCY/NEGLECT PETITION FOR CUSTODY
The minor child, T.B. (DOB ), entered into custody of the Division of Family Services ("DFS") by emergency ex parte Order on May 9, 2016, due to allegations that there was no electric, food or water in the home where he resided with B.T.B. ("Mother"). Additionally, Mother and M.B. ("Father") admitted to heroin use.
A Preliminary Protective Hearing was held on May 19, 2016, at which time Mother agreed that both probable cause existed to find T.B. dependent in her care, and that T.B. was dependent in her care and it was in the best interests of T.B. that custody be awarded to DFS. Father failed to appear. The Court received evidence that Father was living in a tent and was actively using heroin. The Court found probable cause existed to believe that T.B. would be dependent in Father's care due to housing concerns, substance abuse, and lack of medical care.
Mother's stipulation negated the need to schedule a separate Adjudicatory Hearing for Mother.
A Dispositional Hearing for Mother, and an Adjudicatory Hearing for Father, was held on June 30, 2016. Father again did not appear. Mother reported that Father was using heroin, was verbally, mentally, and physically abusive, and did not want to see the child. Mother's reunification case plan presented at the hearing addressed issues of Mother attending T.B.'s medical appointments, participating in mental health, domestic violence, and substance abuse evaluations and recommended treatment, working with a parent aid, obtaining housing, obtaining employment or other financial resources, and visiting with the child. The Court found that T.B. was dependent in Father's care.
The hearing was originally scheduled for June 23, 2016. However, Mother requested a continuance, which was granted by the Court.
The Court held a Review Hearing on September 29, 2016. Father appeared. N.F. ("Grandmother"), T.B.'s maternal grandmother, also appeared. Grandmother had filed a Petition for Guardianship. However, because Grandmother resides in Virginia, a home study needed to be completed through the Interstate Compact on the Placement of Children ("ICPC") in order to approve placement of T.B. in a jurisdiction other than Delaware.
Dr. Joseph Zingaro testified regarding his psychological evaluations of Mother and Father. According to Dr. Zingaro, Mother revealed that there was domestic violence in her relationship with Father. Mother admitted she began using heroin in January 2016 and that she was homeless. Dr. Zingaro diagnosed Mother as suffering from opioid use disorder, adjustment disorder with depression, and being a victim of domestic violence. Father admitted to being suicidal in January of 2016. Father admitted to using heroin and other drugs. Father was not employed and was residing in a home not appropriate for T.B. Father stated that he was going to begin a Suboxone treatment program.
The contents of Father's reunification case plan included attending medical appointments, having a mental health evaluation and treatment, having a substance abuse evaluation and treatment, working with a parenting aid, engaging in domestic violence counseling, obtaining housing, obtaining employment, and visiting with T.B.
An ICPC investigation was progressing on Grandmother's home. However, Grandmother would need to become a certified foster parent in Virginia.
The Court held a second Review Hearing on December 22, 2016. At that hearing, evidence was presented that Mother was receiving substance abuse counseling and treatment. Father was receiving a Vivatrol shot once per month. Father was also attending counseling sessions. However, Father produced positive drug screens and had missed some of his counseling sessions. Father was working on his mental health issues and had been prescribed medication for depression and anxiety. Mother was attending her visits with T.B. and was very involved in those visits. Mother and Father were attending a Strengthening Families parenting class. Father attended three of eleven scheduled visits with T.B. Mother and Father were residing in the same home. Father was employed at . Mother was in the process of getting a job at .
A third Review Hearing was held on March 16, 2017. The Court received evidence that Mother was successfully discharged from her treatment at Thresholds with no positive drug screens since the December 2016 hearing. Mother had recently had a baby. Mother was attending all visits, aside from occasions where she or the child had to cancel due to illness. Mother completed the parenting class. Mother and her baby had relocated to Virginia with Grandmother and Mother's step-father, M.F. Mother was unemployed. Neither Mother nor Father had completed the domestic violence portion of their case plans.
The Virginia ICPC of Grandmother's home was denied because Mother and her newborn child had moved into the home, and because Mother's step-father, Mr. F., indicated that he was opposed to T.B. living in the home. Virginia child welfare authorities permitted Mother to raise her newborn child, however.
Father had cancelled nine out of twelve scheduled visits with T.B. Father had been living in hotels. Father graduated from the parenting class. Father was taking his medications. However, Father had not completed the mental health or domestic violence evaluation or treatment, or attended T.B.'s medical appointments. Father had missed some of his Thresholds counseling sessions and drug screens.
On April 27, 2017, DFS filed an Emergency Motion for Priority ICPC Order. DFS asserted that Mother had substantially completed the elements of her case plan and had relocated to Virginia. DFS also stated that Mr. F. had indicated that he no longer opposed T.B. moving into the home. Thus, DFS requested that the Court approve an expedited ICPC of Mother's home in Virginia. The Court granted DFS's request that same day.
On June 29, 2017, the Court held a Permanency Hearing. Evidence was presented that Virginia again denied placement of T.B. in Mother's Virginia home. The Delaware DFS worker had communicated with the Virginia ICPC worker who referred to the prior investigation done in February 2017, where the home was not approved. The Virginia worker refused to confirm whether a subsequent investigation had actually occurred. The Virginia worker also refused to participate in a Delaware Court hearing. Virginia continued to allow Mother to raise her infant child in the Virginia home.
According to the DFS worker, and as cited in DFS's Motion for an expedited ICPC investigation, Mr. F. had changed his mind and agreed to placement of T.B. in the home. An affidavit, indicating that Mr. F. had changed his mind and signed by Mr. F., was sent to Virginia authorities.
Mother testified that no one from Virginia had come to the home to do a second investigation. Mother stated that if relocating back to Delaware was necessary in order to obtain custody of T.B., she would discuss it with her mother. However, Mother could not afford an apartment and did not have transportation.
Mother had not been attending T.B.'s medical appointments. However, this was understandable considering she was residing in Virginia and T.B.'s appointments were in Delaware. As stated at the prior hearing, Mother had participated in a mental health evaluation and completed treatment at Thresholds; Mother completed her parenting class and attended every visit with T.B.; and Mother was not employed but was receiving public assistance. Regarding housing, Mother was residing in Virginia with her infant son, her mother, and Mr. F. Mother had not completed a domestic violence evaluation.
Father completed a mental health evaluation. However, Father was not in compliance with recommended treatment. Father was discharged from Thresholds for not cooperating. Father had not attended half of his scheduled visits with T.B. Father was living in a tent. Father completed the parenting class. Father was still working at . Father testified that he wanted T.B. to be placed with Mother and that he was not in a position to care for T.B. at the time.
The DFS worker testified that if the ICPC study had approved the home in Virginia, she would be considering a trial home placement of T.B. in Mother's home in Virginia.
On August 31, 2017, Mother filed her pending Motion to Rescind Custody asserting that she had completed the elements of her case plan and that T.B. was no longer dependent in her care. Further, Mother contended that the Court may place T.B. in the care of Mother notwithstanding the disproval of such placement following the ICPC process between Virginia and Delaware. Supporting this contention, Mother's Motion explains that the second ICPC request had been denied because during "the previous home study, it was learned that Mr. F. [was] adamantly against the placement and [was] under a tremendous amount of stress." The denial stated that "at this time, the information provided in the home study request does not indicate that Mr. and Mrs. F. have come to an agreement in regard to [the child] being placed in the home." Mother asserts that the ICPC denial is contradictory given that it states its basis for denial being that Mother's step-father objected to placement of T.B. in the home. Yet, it also states that ICPC received step-father's affidavit indicating that he no longer objected to T.B. being in the home. Further, Mother asserts that no one from Virginia came to the home to complete a second assessment or communicated with Mother regarding the status of her case plan. Mother contends that the second ICPC denial was based wholly on the information and results gathered during the first ICPC assessment, which occurred several months prior and was submitted on behalf of Grandmother, who was seeking guardianship at the time, not Mother.
Mother asserts that she has completed all elements of her case plan and that the ICPC denial is a barrier to placement of T.B. with her. As such, Mother asserts that the ICPC denial should not preclude placement of T.B. with Mother and that DFS custody should be rescinded. Additionally, Mother asserts that the ICPC does not apply to parental placements and its application to parents is unconstitutional.
On September 11, 2017, T.B.'s counsel filed a Response to Mother's Motion requesting that the Court defer ruling on Mother's Motion until the underlying constitutional issues regarding the ICPC's applicability could be briefed by the parties.
On that same day, DFS also filed a Response to Mother's Motion requesting the Court deny the Motion. DFS contended that Virginia did complete a subsequent investigation of the Virginia home and maintained its denial of the ICPC request for placement of T.B. with Mother. DFS asserted that the Delaware Supreme Court has held that the ICPC applies to parents.
The Court held a Permanency Review Hearing on September 15, 2017. Also still pending before the Court was the Petition for Guardianship filed by Grandmother.
At the hearing, K.S., the Virginia ICPC worker, agreed to testify by telephone. She stated that she completed a second investigation of Mother's home on August 25, 2017. She testified that the home was appropriate. However, Mother, T.B., and the new born baby would all be staying in one room and Virginia did not feel that one room was adequate. Mr. F. had indicated to the worker that he supported placement of T.B. in the home.
Ms. S. denied placement of T.B. in Mother's home because Mother remained unemployed and was not seeking domestic violence treatment in Virginia. Ms. S. communicated that Mother was totally relying on others. Ms. S. stated that she would reconsider approval in three to four months if Mother gained employed, participated in domestic violence treatment in Virginia, and sought housing. Ms. S. also stated that Mother and other people in the home needed to complete criminal background checks.
Interestingly, there is no indication that Mother's infant child has been removed from the home by Virginia authorities and there is no indication that the infant child will be removed, or that an investigation is occurring with regard to that child. In other words, Virginia authorities believe that Mother can care for her infant child in the home but not T.B. in the same home. Ms. S. testified that the infant child has not been removed from the home because Virginia Child Protective Services has never received a call concerning that child's well-being. Furthermore, Ms. S. stated that when she visited the home, she did not observe any issues with the home which would cause her to contact Child Protective Services with regard to the infant child.
Placement of T.B. in the home through a guardianship of Mr. and Mrs. F. was also denied. However, Ms. S. stated that she could approve placement in the home if Mr. and Mrs. F. completed PRIDE training, for foster parents, and obtained criminal background checks.
Mother's DFS worker testified that Mother had a domestic violence evaluation and was attending counseling in Delaware. Mother testified that she was seeking employment. According to DFS, all other elements of the case plan had been complied with.
Father had moved to Ohio and done nothing on his case plan.
The Court continued reunification as the permanency plan. The Court ordered briefing on Mother's Motion regarding the constitutionality of the ICPC and its applicability. The Court scheduled a Permanency Review Hearing and Guardianship Hearing for December 14, 2017.
On December 14, 2017, the Court held a second Permanency Review Hearing. At the hearing, Mother's DFS case worker testified that Mother had completed all elements of her case plan. However, the Virginia ICPC investigation report, completed December 12, 2017, again denied Mother's home as a placement. The December 12 report states that Mother has not completed the recommended services or obtained employment and that there is limited space in the home for the child. Specifically, Virginia denied Mother as a placement because Mother was not actively searching for employment; Mother had not initiated domestic violence support services in Virginia; Mother did not have a valid driver's license; the bedroom in the home was not appropriate for Mother, T.B., and Mother's infant son; Mother failed to complete a background check; Mother had not contacted Virginia and thus, in their opinion, did not appear to want to participate in the process; Delaware authorities had not provided Virginia with a current assessment of T.B.; Mother allowed Father to attend an unsupervised visit with her and T.B.; Mother slept in the same bed as her infant son, which gave Virginia concern about Mother's ability to provide safe and adequate supervision to T.B.; the agency had concerns that Mother would not ensure that T.B. receives the services he needs related to his past behavioral issues; Mother had not scheduled neurological testing for her infant son, who exhibited gross motor skill delays; and Mother was completely dependent on "a fragile support system."
Specifically, Mother had completed the mental health and substance abuse portion of her case plan. Mother completed her evaluation with Dr. Zingaro, her counseling at Thresholds, and was successfully discharged from the Thresholds program. Mother completed the parenting skills element of the case plan and was working with a parent aid for over one year. Mother completed the employment element. Mother was actively seeking employment and was receiving state assistance to maintain financial security. Mother completed the domestic violence element as she was regularly seeing a counselor at People's Place. Mother was excusably unable to attend T.B.'s medical appointments because they occur in Delaware. Thus, Mother was in compliance with that element of her case plan. Mother had housing as she was residing with her mother and step-father.
Following the September 15, 2017 hearing, DFS requested that another ICPC of Mother's Virginia home be performed.
State's Ex. 1.
Specifically, the Virginia agency had concerns that Mother's step-father reluctantly agreed to T.B. living in the home after he was threatened with divorce, and if Grandmother and Mr. F. divorced Mother would lose her entire support system.
Mother's Delaware DFS worker, L.D., testified that she does not agree with some of the above aforementioned Virginia concerns. Specifically, Mother is seeking employment and in the meantime is receiving state benefits, which are sufficient to satisfy the employment element of her case plan. Mother is attending domestic violence counseling in Delaware. Mother has a temporary driver's license. Delaware did submit an assessment of T.B.'s status in care to Virginia. Father never attended a visit with T.B. unsupervised, since the parent aid was present. Mother communicated to Ms. D. that she was never sleeping in the bed with her infant child. Instead, the child was sick and Mother was laying with him. Ms. D. feels that Mother will keep T.B. in therapy to help with his behavioral issues. However, his behavioral issues have improved and his behavioral issues are not a basis for T.B. to remain in DFS custody. Mr. F. has signed an affidavit attesting that he is willing to have T.B. in the home. Finally, the home is a positive environment for Mother. Ms. D. was unable to testify as to the remaining issues. However, she stated that Mother never had a concerning criminal history in the past, or concerning prior DFS involvement which would prevent the return of T.B. to Mother's care.
The Court references that Mother's case plan indicates that Mother obtain employment or "other financial resources."
Father had child protective services involvement in the State of Maryland regarding an incident with T.B. Mother was not involved in that investigation.
Ms. D. stated that, in her opinion, it does not appear that Virginia will ever approve Mother's home as a placement for T.B. According to Ms. D., Mother has completed the elements of her case plan. As such, Ms. D. stated that, in Delaware's opinion, T.B. is no longer dependent in the care of Mother, aside from the fact that Mother is unable to obtain Virginia ICPC approval. Additionally, Ms. D. stated that returning T.B. to Mother is in T.B.'s best interests.
Mother's Children's Choice parenting aid, S.S., stated that Mother never missed a visit with T.B., notwithstanding that she had to travel from Virginia, and she always brought her infant son to visits with her. Ms. S. observed that Mother acted appropriately at visits and that T.B. wanted to go back to live with Mother.
Mother testified that she continues to participate in domestic violence counseling and continues to receive state assistance in the form of SNAP and food stamp benefits. According to Mother, this is sufficient to financially support herself, her infant son, and T.B. Mother testified that if T.B. were returned to her, he would sleep in the same room with Mother's infant son. The room has a full-size futon, a crib, and dressers for the children's clothing. Mother would sleep in a separate room. Mother also attends Narcotics Anonymous meetings once per week.
If T.B. is placed with Mother, Mother will receive additional state assistance to cover his needs.
T.B.'s foster mother testified that T.B. is healthy, doing well in school, and has greatly improved behaviorally. T.B. enjoys visiting with Mother.
Grandmother testified that T.B. is welcome to live in her home and that Mr. F. shares her position that T.B. may live in the home. She further stated that she and Mr. F. will continue to permit Mother to live in their home and will help her to get her driver's license, save her money, and eventually obtain a place of her own. They have no time limit as to how long Mother is able to stay with them, and they will continue to help Mother as long as she needs it. If Mother needed money for the children for food or clothing, Grandmother would be able to provide it to her.
Father continues to reside in Ohio. He is unemployed and testified that he has been sober for six months.
The Court received no evidence regarding the status of Father's completion of his case plan.
DFS asserted that T.B. should be returned to Mother and that T.B. is no longer dependent in Mother's care for any reason other than the denial of the ICPC.
At the conclusion of the hearing, the Court found that it continues to be in T.B.'s best interests that custody remain with DFS and that DFS was making reasonable efforts toward reunification. The Court deferred ruling on the guardianship. The Court indicated that it would issue a written opinion addressing the issue of the ICPC applicability in this case and its constitutionality. The Court also gave Father ten days to raise an additional argument he indicated that he wished to brief. Father did not file a brief.
The parties' positions on the applicability and constitutionality of the ICPC in this matter are detailed below.
DISCUSSION
Mother filed her Opening Brief on October 25, 2017. Mother asserts that the Court may place T.B. in her care, notwithstanding the disproval of such placement following the ICPC process between Virginia and Delaware because (1) the ICPC is not applicable to parental placements and (2) the application of the ICPC to parents violates the United States and Delaware Constitutions with regard to Substantive Due Process, Procedural Due Process, and Equal Protection. DFS and The Office of the Child Advocate ("OCA"), on behalf of T.B., filed responsive briefs on November 27, 2017.
ICPC APPLICABILITY TO THE PLACMENT OF CHILDREN WITH THEIR PARENTS
The Interstate Compact on the Placement of Children, or "ICPC," is a statutory provision which "establishes uniform legal and administrative procedures governing the interstate placement of children." Prior to its enactment in 1960, a group of social service administrators studied the problems of children moving out of state to foster care or adoption placements. The group identified three issues which arose in such situations: (1) "the failure of statutes enacted by individual states to provide protection for children moved interstate;" (2) "the inability of the sending state to ensure that the child received proper care and supervision in the receiving state;" and (3) "the absence of any means to compel the receiving state to provide services in support of the foster child's placement." To address these issues, the language of the ICPC was drafted. The ICPC was "intended to create a system by which states could work together to handle the supervision of interstate child placements."
Association of Administrators of the Interstate Compact on the Placement of Children, http://www.aphsa.org/content/AAICPC/en/home.html.
Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of Non-custodial Parents under the Interstate Compact on the Placement of Children, 25 YALE L. & POL'Y REV. 63, 68 (2006).
Id.
Id.
The ICPC "requires that appropriate state or local agencies in the state receiving the child (the "receiving state") be notified before a placement of a child can be made by out of state persons and agencies." Agencies in the receiving state are then "given the opportunity to investigate, and, if satisfied, they must notify the sending state that the proposed placement does not appear to be contrary to the child's interests." Since 1990, every state has enacted the ICPC into law.
Id. at 68-69.
Id. See also 31 Del.C. § 381(b).
Sankaran, supra note 12.
Pursuant to the Delaware Code, the purpose of the ICPC is to have each child receive the maximum opportunity to be placed in a suitable environment, while allowing the appropriate authorities in a receiving state to have an opportunity to ascertain the circumstances of the proposed placement for the protection of the child.
31 Del.C. § 381(a-b).
The parties' positions as to the applicability of the ICPC to parental placements are detailed below.
A. Mother's Argument:
Mother first contends that the ICPC expressly excludes parental placements. Further, Mother asserts that the ICPC's interpreting regulations are inconsistent with the underlying statute, and therefore invalid.
Mother recites the language of the ICPC which indicates that it applies to situations involving either (1) a foster care placement, or (2) a placement considered as "preliminary to a possible adoption." The language does not contemplate parental placements. Mother argues that, in interpreting the statute in accordance with the rules of statutory construction, the language of the ICPC statute is unambiguously drafted to include foster care and pre-adoptive placements. There is no reasonable interpretation of the term "foster care" or "pre-adoptive placement" that includes a child's parent, with whom the child already enjoys the legal tie of the parent-child relationship. Thus, according to Mother, placement of a child with a parent does not implicate the statutory requirements of the ICPC.
31 Del.C. § 381 art. III(a).
In addition, Mother contends that the language of the ICPC statute conflicts with the ICPC regulations. Specifically, "Regulation 3" of the ICPC regulations states the placement categories which require compliance with the ICPC in four types of placement situations. Those four categories are:
1. Adoptions: Placement preliminary to an adoption (independent, private or public adoptions)
2. Licensed or approved foster homes (placement with related or unrelated caregivers)
3. Placements with parents and relatives when a parent or relative is not making the placement as defined in Article VIII (a) "Limitations"
4. Group homes/residential placement of all children, including adjudicated delinquents in institutions in other states as defined in Article VI and Regulation No. 4.
Association of Administrators of the Interstate Compact on the Placement of Children Reg. No. 3, Sec. 2(a).
Mother argues that this regulation clearly conflicts with the language of the statute as the statute does not apply to the placement of children with their parents, yet the regulation directs that placement of a child with their parent is subject to ICPC compliance. Mother contends that when an agency regulation conflicts with, or is inconsistent with, the statutory text by which it is enabled, the statutory text must control. Because Regulation 3 is inconsistent with the statute, the regulation is invalid. Therefore, because the statute does not indicate that ICPC approval is required in parental placements, it should not be necessary in such situations, notwithstanding the regulation's indications otherwise.
Finally, Mother asserts that the Court should strive to avoid interpreting the statute so as to create an unnecessary constitutional issue. Here, interpreting the statute to include parents implicates a constitutional issue in that a parent has a constitutional, fundamental right in directing the upbringing of their child. If the ICPC applies to parents, it unconstitutionally infringes of the parent's fundamental right to parent their child. Therefore, the statute should be read, as it is unambiguously written, to not apply to placement of children with their parents.
B. DFS's Argument:
DFS asserts that the ICPC does apply to parental placements when the subject child has been found to be dependent in the parent's care.
According to DFS, the ICPC is intended to be liberally construed to protect the well-being of children in foster care who are subject to an out of state placement with a parent who has completed a reunification case plan.
DFS argues that, in this case, T.B. was found to be a dependent child in a custody proceeding in which Mother was represented by counsel, given the opportunity to present evidence, and agreed that T.B. should remain in foster care. Application of the ICPC protects T.B. when being placed out of state by ensuring that this Court will have adequate information regarding the safety and suitability of the out of state placement.
DFS states that the language of "placement in foster care" does not preclude the ICPC's applicability to parental placements. This is not a case in which a non-custodial parent, against whom no allegations have been raised, finds themselves subject to the ICPC. It was the actions of Mother which resulted in T.B. entering foster care. DFS argues that this is a placement of a child by a child welfare agency to a residence in another state, with Delaware continuing to hold custody until the appropriate supervisory period of trial home placement in Virginia has concluded. Thus, it is exactly the type of placement addressed by the plain language of the ICPC and is applicable to T.B.'s placement with Mother.
C. The Office of the Child Advocate's Argument:
OCA contends that applying the ICPC to fit parents infringes on this Court's authority to make determinations regarding child custody and undermines the purpose of the Court. Furthermore, this Court has the authority to remove children from a parent's care when the Court finds that the child is dependent in the care of their parent. If applied to both fit and unfit parents, the ICPC would divest this Court of its authority to make decisions concerning families and children falling within its jurisdiction.
According to OCA, the ICPC regulations indicate that they do not apply to situations involving fit, non-custodial parents. Additionally, OCA asserts that the Delaware Supreme Court has held that the ICPC is inapplicable to fit, non-custodial parents. In that case, the Supreme Court concluded that the ICPC was applicable to non-custodial parents in certain circumstances, namely, when the evidence before the Court was that the parents were unfit. In contrast, the Court noted that where the fitness of a non-custodial parent is not in doubt, and no continuing supervision will be necessary, the regulations authorize a court to hold the ICPC inapplicable to that parent.
Regulation 2 of the ICPC regulations states that:
When the court places the child with a parent from whom the child was not removed, and the court has no evidence that the parent is unfit, does not seek any evidence from the receiving state that the parent is either fit or unfit, and the court relinquishes jurisdiction over the child immediately upon placement with the parent, the receiving state shall have no responsibility for supervision or monitoring for the court having made the placement. Association of Administrators of the Interstate Compact on the Placement of Children Reg. No. 3, Sec. 2(a).
See Green v. DFS, 864 A.2d 921 (Del. 2004).
OCA argues that excluding fit custodial parents from ICPC application is a logical extension that preserves the Court's authority to make decisions for children under its jurisdiction, aligns with the purpose of the ICPC, and comports with the reasoning in Green. Moreover, placing a child with a fit parent in another state is in line with the goal of the ICPC to maximize the opportunities for placing children in suitable environments.
OCA argues that the most compelling argument against application of the ICPC to a fit parent comes as a result of the ICPC's effect on this Court's ability to make custody determinations. OCA states that the Court shall rescind custody to a parent upon a finding that the child is no longer dependent, neglected or abused in the parent's care. According to OCA, applying the ICPC to fit parents, custodial or non-custodial, can lead to a situation where this Court finds the parent fit (i.e. the child is no longer dependent in their care), but this Court is barred from exercising its authority and rescinding custody to the parent because of a denied ICPC home study. In such cases, Delaware law requires the Court rescind custody to the parent, and the only barrier to doing so is the ICPC denial.
Additionally, OCA continues that failure to exclude fit parents from the application of the ICPC could encourage actions intended to circumvent ICPC denials. Specifically, if the Court finds a parent fit, but still denies rescinding custody due to ICPC denial, the parent could be inclined to briefly establish residence in Delaware, receive custody, then go back to the other state where the ICPC was denied.
OCA concludes that, in this case, it was determined that Mother was not fit to care for T.B. However, Mother is now in full compliance with her case plan and the only thing preventing DFS from placing T.B. with her is the ICPC denial. OCA argues that, should the Court be satisfied that T.B. is no longer dependent in Mother's care, the Court should not supplant its statutorily conferred authority to make decisions regarding the custody of children for the opinion of an administrative agency. This Court is better informed than the Commonwealth of Virginia to make a custody determination regarding T.B. OCA states that, when comparing this case to Green, in Green the Court was concerned about placing the child in another state without any indication that the parent was able to care for the child. Here, the Court has ample evidence of Mother's ability to care for T.B. Moreover, Green holds that when the fitness of a non-custodial parent is not in doubt, and no continuing supervision will be necessary, the ICPC can be held inapplicable. Thus, should the Court determine that Mother is fit, insofar as T.B. would not be dependent, neglected or abused in her care, then custody should be rescinded to Mother, regardless of the ICPC denial.
CONSTITITIONALITY OF ICPC
A. Mother's Argument:
In addition to her assertion that the ICPC does not apply to parental placements of children, Mother asserts that the ICPC statute is unconstitutional. She contends that the right of a parent to direct the upbringing of their child has been held by the United States Supreme Court to be one of the constitutionally protected fundamental rights. Assuming the language of the ICPC was drafted to include parental placements, Mother argues that the statute does not pass constitutional muster under the Procedural Due Process Clause, an Equal Protection analysis, and a strict scrutiny analysis as applied to the fundamental right to direct the upbringing of one's child.
Typically, in cases involving fundamental parental rights, the burden rests with the government to prove that a parent is unfit. However, Mother further contends that the ICPC process shifts the burden and allows a government actor to intrude upon the parent-child relationship, only to be undone by the parent meeting the burden. Specifically, in this case, Mother needs to demonstrate to the Virginia social worker that she can meet the child's best interests and is a fit parent. Mother continues that, despite DFS's testimony that a trial placement would be occurring if Mother still resided in Delaware, Mother has been effectively presumed unfit by Virginia. Mother contends that she is unable to appeal Virginia's ICPC denial, infringing on her Due Process rights.
Secondly, Mother argues that the ICPC violates Equal Protection. The Equal Protection Clause of the Fourteenth Amendment prohibits a government actor from treating similarly-situated individuals differently, and invokes a strict scrutiny analysis if any divergent classification impinges upon a fundamental right. Strict scrutiny requires the government actor to prove that the intrusion upon the fundamental right is narrowly tailored to advance a compelling government interest. Mother asserts that the parent-child relationship involves a fundamental right and should be subjected to a strict scrutiny analysis. Further, Mother contends that the ICPC process triggers strict scrutiny because it treats similarly-situated individuals with identical Due Process rights differently. Specifically, Mother argues that a parent in Mother's exact same situation located in Delaware would be enjoying a trial home placement by now, whereas Mother's residency in Virginia has limited her to once-per-week visitation. Further, the Court is able to rescind custody and place the child in a Delaware-based parent's care without the need for ICPC approval, whereas procedure for Mother binds the Court's hands when and until the ICPC is approved.
Mother concedes that the state has a compelling interest in ensuring that children are placed in a suitable environment with individuals who can provide appropriate care to them. However, the ICPC is not narrowly tailored as it implicates on-going investigations of parents. In Mother's position, in the event the Court finds Mother to be fit to parent her child, she should not be subject to a higher degree of monitoring than a similarly-situated parent. Mother states that the ICPC process is not a compelling interest sufficient to withstand strict scrutiny. Rather, Mother argues that, to determine an appropriate placement for the child, the Court can simply rely on testimony and evidence presented by Mother and DFS. The judicial process itself fulfills the State's interest in ensuring necessary care to the child. Thus, additional monitoring by Virginia exceeds the confines of constitutionality.
Mother further contends that the ICPC process is not narrowly tailored. DFS could rely on technological advancements to investigate the condition of Mother's home, or DFS could travel to the home to conduct an investigation. Here, where Mother has met all other elements of her case plan, the additional ICPC element goes beyond the scope of a narrowly-tailored infringement of the parent-child relationship.
B. DFS's Argument:
DFS asserts that the ICPC does not violate Mother's constitutional rights. DFS agrees that the right to parent is a fundamental right. However, Mother fails to consider her own actions regarding the prohibitions that have been placed on this right. T.B. was dependent in Mother's care and state involvement was necessary to protect him. Mother agreed that T.B. was dependent in her care and has had opportunity to participate throughout the Court's proceedings in this matter. DFS asserts that, though there is no provision indicating that Mother may appeal her ICPC denial, there are means for her to seek Court review of the ICPC decision.
DFS contends that the ICPC does not infringe Mother's Equal Protection rights. Mother is not being treated differently than in-state parents similarly situated. Rather, DFS argues that the ICPC is necessary to ensure supervision of T.B.'s placement with Mother. If Mother were residing in Delaware she would need to participate in overnight and weekend visits and trial home placement. The ICPC provides the mechanism for supervision for parents residing out of state.
Further, DFS argues that the ICPC is narrowly tailored because it is the way to monitor the placement of the child with the parent, serving the compelling interest of ensuring that children are placed in a safe and suitable environment. DFS is unable to use technology or to send a worker to investigate the condition of the Virginia home.
Regarding the application of Green, DFS states that the Court in that case held that the ICPC did not violate the Due Process rights of two non-custodial parents whose parental rights were terminated. Under the doctrine of stare decisis, this Court is bound by the Supreme Court's decision in Green.
C. The Office of the Child Advocate's Argument:
OCA asserts that applying the ICPC to a parent is not unconstitutional. As noted in Green, parents have the ability to appeal ICPC decisions. This satisfied the Supreme Court with regard to Due Process. Moreover, application of Green to parents whose fitness is unknown does not violate Equal Protection. Any state has a compelling interest to protect children within it. Allowing the ICPC to proceed for parents whose fitness is not determined is a narrowly tailored process to keep children in a safe environment who may not otherwise be adequately cared for if sent to the receiving state.
DECISION OF THE COURT
As the parties have articulated in their supporting briefs, the purpose of the ICPC is to protect children moving interstate by providing those children with the "maximum opportunity to be placed in a suitable environment," and with an individual having appropriate qualifications to provide necessary care to the child. In order to facilitate this purpose, the receiving state shall have the opportunity to ascertain the circumstances of the proposed placement, evaluate the placement before the child is placed there, and promote full compliance with applicable requirements for the placement of the child. The ICPC gives the sending state, and the Court, the ability to receive adequate information regarding the safety and suitability of the out of state placement.
31 Del.C. § 381 art. I(a).
31 Del.C. § 381 art. I(b-c).
Removing parents from the scope of the ICPC undermines the purpose of the ICPC by removing the necessary safeguards to protect children moving out of state and being placed with their parent. However, with that said, the Court does not find it logical that the ICPC is meant to apply in situations where a child will be moved out of state into the home of an otherwise fit parent. The Delaware Supreme Court addressed this issue in the Green case and this Court is bound by that precedent.
In Green, two fathers were denied ICPC approval, in the Commonwealth of Virginia, after their children were removed from the mother's care in Delaware and placed in the custody of DFS. The one father, Green, did not cooperate with Virginia officials and thus a home study was never completed on his home. The other father, Gelman, was denied placement by Virginia ICPC due to his criminal record. However, he subsequently relocated to Delaware and entered into a case plan with DFS. Though he began working on the elements of his case plan, after five months, Gelman moved back to Virginia and had no contact with DFS or his son for approximately eight months. Following a three day hearing, the Family Court terminated both fathers' and the mother's parental rights for failure to plan. All three parties appealed.
Green, 864 A.2d at 923-26.
Id. at 924.
Id.
Id.
Id.
Id.
The fathers did not seriously dispute the Family Court's findings or conclusions as to their failure to plan for their children. Rather, they argued that the ICPC should not apply to them because they were not seeking placement as foster parents or adoptive parents. They asserted that, as the children's parents, they should not have been subject to ICPC approval before being granted custody. The Delaware Supreme Court held that the ICPC governed the placement of the children with Gelman and Green.
Id. at 925.
Id. at 926.
Id.
Id.
In its holding, the Court states that, since the purpose of the ICPC is to protect children who are subject to placement in another state, "the ICPC should be read to encompass placement of a dependent child with a non-custodial parent." The Court continues that:
Id. at 927.
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. The ICPC provides an effective mechanism for gleaning that evidence and for maintaining a watchful eye over the placement.
Id.
However, the Court continues that:
The Compact does not apply whenever a court transfers the child to a non-custodial parent with respect to whom the court does not have evidence before it that such parent is unfit, does not seek such evidence, and does not retain jurisdiction over the child after the court transfers the child.
Id. at 928.
Additionally, the Court states that "where the fitness of a non-custodial parent is not in doubt, and no continuing supervision will be necessary, the regulations authorize a court to hold the ICPC inapplicable to that parent."
Id.
Based on this holding, the Court finds that the ICPC is inapplicable to fit, non-custodial parents. Moreover, if a parent is fit, thus a child is not dependent in the parent's care, the Court may return the child to the out of state parent, without any approval by the receiving state. In other words, if the Court, as in this case, makes a determination that the child is no longer dependent in the care of their parent, continued approval by an out of state agency of the child's placement with the parent is not necessary. Thus, in this case, the Court may return the child to Mother, an out of state fit parent, without any approval by Virginia authorities that Mother is capable of caring for the child appropriately.
Furthermore, as OCA argues, applying the ICPC to cases involving both fit and unfit parents would divest the Court of its authority to make decisions concerning families and children falling within its jurisdiction. In private custody matters, this Court has regularly placed children in the care of an out of state fit parent, and permitted otherwise fit parents to relocate out of state with a child. Application of the ICPC in such matters involving fit parents would essentially divest the Court of its authority to do this, as all out of state relocations would require ICPC approval, regardless of the Court's findings and holdings as to the fitness of the parent and the best interests of the child.
Finally, the Court agrees with the assertion that, practically, it does not make sense to apply the ICPC to cases involving fit parents as it would encourage actions by parents intended to circumvent the ICPC process. Specifically, a parent could simply relocate back to their home state, receive custody of the child, as the ICPC approval would no longer be needed, and then relocate back to the state in which the ICPC was denied.
The Court is unable to find that T.B. continues to be dependent, neglected or abused in the care of Mother. Mother has successfully completed the elements of her case plan and has continued to maintain compliance with the elements of her case plan for the past eight months, since DFS filed its April 27, 2017, request for an expedited ICPC approval, indicating at that time that Mother had substantially completed the elements of her case plan. Though there may have been questions as to Mother's ability to take over full responsibility of T.B., those concerns have all been addressed through the completion of her case plan. Additionally, the issues regarding the condition of Mother's home and her substance abuse, which precipitated the filing of DFS's Petition for Custody, no longer exist. The only provision of Mother's case plan precluding return of T.B. to Mother is the requirement that Mother obtain ICPC approval. Based on that alone, the Court is unable to conclude that T.B. remains dependent in Mother's care. Thus, the ICPC approval is not necessary to ensure that Mother is able to provide appropriate care to the child.
Furthermore, T.B. has been in the care of DFS for the past year and seven months. During that time, this Court has continued to receive evidence regarding his status in care and Mother's status and efforts in changing her life and completing her case plan. Mother has taken all steps necessary in order to have T.B. returned to her care. The Court has received ample evidence sufficient for it to conclude at this time that Mother is able to provide appropriate and necessary care to T.B. Based on the amount of evidence received and the amount of time that this matter has been before this Court, this Court is in a better position than a Virginia agency to make an appropriate custody determination regarding T.B.
The ICPC applies to the placement of a dependent child with an out of state parent. T.B. is not dependent in the care of Mother as Mother has completed all elements of her case plan. Because T.B. is no longer dependent in the care of Mother, the ICPC approval of placement of T.B. with Mother is not necessary. Pursuant to the authority granted to this Court by the Delaware Supreme Court in Green, the Court holds that the ICPC is inapplicable to Mother. Because T.B. is no longer dependent in the care of Mother, Delaware law requires this Court to rescind DFS custody and return T.B. to Mother.
See Id.
Because the Court has determined that the ICPC is not applicable to Mother, the issue of the constitutionality of the ICPC is moot. Thus, the Court declines to address that issue.
Finally, because DFS custody shall be rescinded to Mother, Grandmother's Petition for Guardianship is denied as moot.
CONCLUSION
Based on the foregoing, the Court hereby ORDERS the following: (1) Mother's Motion to Rescind Custody is hereby GRANTED; (2) Grandmother's Petition for Guardianship is hereby DENIED as moot; (3) pursuant to 13 Del.C. § 2513(c), DFS's custody of T.B. is hereby rescinded to Mother; (4) Mother shall have sole custody and placement of T.B.; (5) DFS shall make arrangements for the prompt placement of T.B. with Mother; (6) because Father has failed to complete the elements of his case plan, or make any significant progress on that plan, the Court declines to order any custody or visitation to Father at this time; (7) DFS has made reasonable efforts toward the permanency plan in effect, which in this case was reunification.
In order to grant guardianship, the Court would need to find that either (1) Mother consents to the guardianship, or (2) the child is dependent, neglected or abused in Mother's care. 13 Del.C. § 2330. As stated herein, T.B. is no longer dependent in Mother's care and Mother does not consent to guardianship. --------
IT IS SO ORDERED this 14th day of March 2018.
/s/_________
PETER B. JONES, JUDGE PBJ