157 Wash. App. 179 | Wash. Ct. App. | 2010
¶1 This case requires us to decide whether the interstate compact on placement of children, ch. 26. 34 RCW, applies to parental placements. We hold it does not and affirm the trial court’s decision to place D.F.-M. with his father in Oklahoma.
FACTS
¶2 D.F.-M. was born on July 19, 2005. On December 22, 2005, a Washington court entered an order in a parentage action, finding that Rico Verner is D.’s father and designating his mother, Alyce Fabian-Miller, as his custodian. The order reserved the issue of a parenting plan for future determination upon motion by either party. No parenting plan was ever entered.
¶3 Starting in 2006, the Department of Social and Health Services (DSHS) received a series of referrals alleging neglect, domestic violence, and drug use by Fabian-Miller. In 2007, Fabian-Miller signed a voluntary service plan and a safety plan in response to the allegations. She failed to comply with the plans. In March 2008, DSHS placed her children, including D., in protective custody and filed dependency proceedings. At that point, DSHS did not know Verner’s whereabouts, or what role he played in D.’s life. It was believed his last known address was in Tulsa, Oklahoma.
¶4 On April 16, 2008, the juvenile court entered an agreed order finding D. to be a dependent child as to Fabian-Miller and ordering that he be placed in DSHSapproved out-of-home care. Verner had yet to be served with the dependency petition and did not appear or otherwise participate. The court nevertheless ordered Verner to con
¶5 Shortly thereafter, Verner learned that D. was in foster care. He contacted DSHS to express “extreme interest” in having his son placed with him.
¶6 Verner responded to the dependency petition, requesting that it be dismissed and that D. be placed with him. On October 20,2008, he filed a motion seeking to have D. placed with him in Oklahoma. Verner had addressed some of the concerns cited by the Oklahoma social worker. He was employed, was approaching completion of his welding degree, and explained that his mother would help with D.’s care while he was at school or work. He had also ended the relationship the social worker had expressed concern about. The court denied the motion without prejudice and invited Verner to renote the motion once he had addressed the
¶7 By April 2009, Verner had completed a parenting course, moved in with his mother, completed school, was no longer in contact with his ex-girlfriend, was maintaining his employment while looking for opportunities in his new field, and was in the process of obtaining a driver’s license. He was also having weekly phone contact with D. DSHS made a second request that Oklahoma agree to D.’s placement with Verner.
¶8 Oklahoma again refused, this time on grounds of inadequate housing. Under an Oklahoma policy, Verner’s housing was inadequate because Verner, his mother, and D. would all live in a two-bedroom residence. The Oklahoma social worker who performed the home study did not visit the residence but assessed it based on a telephone conversation with Verner.
¶9 On May 28, 2009, Verner renewed his motion to have D. placed with him. In the meantime, he had acquired a vehicle, obtained insurance, and was in the process of obtaining an Oklahoma driver’s license. The court held a hearing on June 1, 2009. Verner argued he had addressed all concerns raised in the 2008 ICPC home study and explained the living arrangements intended to accommodate his family.
¶10 Fabian-Miller opposed the motion, claiming Verner had unresolved anger issues and had had no contact with D. since the child was seven months old. She also claimed Verner had threatened to beat one of her other children when she was pregnant with D.
¶11 DSHS stated it had no basis to believe Verner was not a fit parent. But DSHS argued that without a positive ICPC home study, the court could not lawfully place D. with Verner in Oklahoma. DSHS could not say whether Fabian-Miller was likely to be successful in reuniting with her children.
¶12 The court ordered D. placed with Verner. Fabian-Miller moved to stay the order while she sought discretion
¶13 We granted Fabian-Miller’s request for discretionary review.
DISCUSSION
¶14 The only issue presented by this case is whether the ICPC applies to parental placements.
¶15 Verner first argues the issue is not properly before us. He contends Fabian-Miller raised it for the first time in her motion for a stay, and that she did not designate the June 5 order in the notice of appeal.
¶16 We disagree with this reading of the record. The subject of the June 1 hearing was the impact of the Oklahoma home study on D.’s placement. Although Fabian-Miller focused on the desirability of the placement, the State argued that the negative home study precluded it. The ICPC issue was thus before the court at the June 1 hearing. Also, in Fabian-Miller’s motion to stay, she argued that a positive ICPC home study is required before a court sends a child to another state. Accordingly, the June 5 hearing included an extensive discussion of the compact. Fabian-Miller’s motion was in substance a motion for reconsideration, and the appeal from the June 1 order brought up for review the June 5 order as well.
The Interstate Compact on the Placement of Children
¶17 An interstate compact is a binding legal instrument which provides for formal cooperation between states.
¶18 We review questions of statutory interpretation de novo.
¶19 The ICPC was drafted in the 1950s by a group of state social service administrators to address the problem of providing services to children placed across state lines.
¶20 Under article III, the scope of the compact is limited to placements in foster care or as a preliminary to an adoption.
¶21 The ICPC does not define “foster care.” The plain, ordinary meaning of the term is the placement of a child in a substitute home, one other than that of the child’s
¶22 Courts across the country are divided on whether the compact applies when the out-of-state placement is to the other parent.
¶23 Other courts have relied on articles VIII and X to hold that the ICPC applies to parental placements. Article X mandates that the ICPC’s provisions be liberally construed to effectuate its purposes.
¶24 We disagree. First, this reasoning conflicts with the plain terms of article III, which limits the scope of the compact to foster care or preadoption placements by a “sending agency.” Article VIII clarifies that the child’s family or guardian is not a sending agency. It is thus designed to limit the scope of the compact. The fact it does not identify every situation not qualifying as foster care cannot reasonably be interpreted to expand the compact.
¶25 Under article V, the sending state retains jurisdiction over the child as if “the child had remained in [that] state,” and the sending agency has continuing financial responsibility for the child’s support and maintenance.
¶26 We are persuaded that the ICPC governs only the placement of children in substitute arrangements for parental care.
The Association of Administrators Regulations
¶27 The Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC) are officials designated by each member state to coordinate ICPC matters within that state.
¶28 Regulation 3 is titled “Placements with Parents, Relatives, Non-agency Guardians, and Non-family Settings.”
¶29 The AAICPC regulations have not been adopted in Washington
¶30 Courts that have applied regulation 3 have often emphasized the desirability of applying the ICPC to parental placements. One court explained that regulation 3 recognizes that a noncustodial parent may have had no involvement in the child’s care before the child is removed from the care of the other parent, leaving a question as to the noncustodial parent’s fitness, and “many of the same concerns that must be addressed before out-of-state placement with a ‘substitute’ or foster parent, are also present with a non-custodial natural parent.”
¶31 These are valid concerns. In making placement decisions, the court’s paramount duty is to protect the best interests of the child.
¶32 This case is an excellent example. A thoughtful and well-informed trial judge searched out the best interests of a child who, fortunately, has a fit parent anxious to offer him a home. DSHS has consistently assessed Verner to be a fit parent, and he steadfastly addressed the concerns of the Oklahoma social worker. By the time of the final study, the social worker’s only complaint was that Verner’s house had too few bedrooms. Washington has no such policy, and the court was satisfied with the proposed living arrangements. But DSHS insists the judge was bound to decide against the placement.
¶33 This is nonsense. The number of bedrooms a family enjoys is a direct consequence of its financial circumstances. Many children have been happily raised without bedrooms of their own. Other children have bedrooms, while a parent sleeps on the sofa. It is the parenting relationship, not the square footage, that interests the court, because it is the parenting relationship that matters to the child. What the evidence shows is that Verner is a fit parent able to provide a good home for D. That was what the court considered, and we believe the court made the right decision.
¶34 We agree with the Third Circuit
¶35 Affirmed.
Review denied at 170 Wn.2d 1026 (2011).
Clerk’s Papers at 40.
Ch. 26.34 RCW.
Clerk’s Papers at 151.
See RAP 2.4(b), (f) (an appeal from a final judgment brings up for review the ruling of the trial court on an order deciding a timely motion for reconsideration).
State v. Svenson, 104 Wn.2d 533, 538, 707 P.2d 120 (1985).
Id.
McComb v. Wambaugh, 934 F.2d 474, 479 (3d Cir. 1991).
Id.
Id.
Sleasman v. City of Lacey, 159 Wn.2d 639, 642, 151 P.3d 990 (2007).
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813, 828 P.2d 549 (1992).
State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005) (alteration in original) (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)).
Id.
State v. Watson, 146 Wn.2d 947, 955, 51 P.3d 66 (2002).
See Am. Pub. Human Servs. Ass’n, Guide to the Interstate Compact on the Placement op Children 3 (2002), available at http://icpc.aphsa.org/Home/Doc/ Guidebook_2002.pdf.
ROW 26.34.010 art. I(a).
Id. art. X.
Washington enacted the ICPC in 1971.
See McComb, 934 F.2d at 480.
RCW 26.34.010 art. III(a).
See id. art. III(b), (c).
Id. art. III(d).
See Webster’s Third New International Dictionary 897 (1993); Black’s Law Dictionary 727 (9th ed. 2009).
RCW 26.34.010 art. 11(d).
See In re Alexis O., 157 N.H. 781, 959 A.2d 176, 182 (2008); Ariz. Dep’t of Econ. Sec. v. Leonardo, 200 Ariz. 74, 22 P.3d 513, 519 (2001).
Alexis O., 959 A.2d at 182.
A slight majority of courts that have addressed the issue have decided that the ICPC applies to a placement with a parent so long as the child remains subject to the jurisdiction of the juvenile court. See Green v. Div. of Family Servs., 864 A.2d 921 (Del. 2004); H.P. v. Dep’t of Children & Families, 838 So. 2d 583 (Fla. Dist. Ct. App. 2003); Leonardo, 22 P.3d 513; Adoption of Warren, 44 Mass. App. Ct. 620, 693 N.E.2d 1021 (1998). Other courts have so assumed, without discussion. See, e.g., K.D.G.L.B.P. v. Hinds County Dep’t of Human Servs., 771 So. 2d 907 (Miss. 2000); D.S.S. v. Clay County Dep’t of Human Res., 755 So. 2d 584 (Ala. Civ. App. 1999); In re Smith, 107 Or. App. 129, 811 P.2d 145 (1991); In re J.H., 156 Vt. 66, 587 A.2d 1009 (1991).
The only federal court to have addressed the issue held that the ICPC does not apply to parental placements. See McComb, 934 F.2d 474. The Third Circuit is joined by several state courts. See In re Alexis O., 157 N.H. 781; Ark. Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002); N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 803 A.2d 721 (2002); Tara S. v. Superior Court of San Diego County, 13 Cal. App. 4th 1834, 17 Cal. Rptr. 2d 315 (1993).
Leonardo, 22 P.3d at 519.
McComb, 934 F.2d at 480.
ROW 26.34.010 art. X.
Id. art. VIII(a).
See Dep’t of Children & Families v. Benway, 745 So. 2d 437, 438-39 (Fla. Dist. Ct. App. 1999).
ROW 26.34.010 art. V(a).
McComb, 934 F.2d at 480.
See RCW 26.34.010 art. VII.
Id.
Ass’n op Adm’ks op the Interstate Compact on the Placement op Children, ICPC Regulations regulation 3 (effective July 2,2001), available at http://icpc.aphsa.org/ Home/regulations.asp.
Id. regulation 3(1).
Id. regulation 3(5).
Id. regulation 3(6)(b).
Compare RCW 26.34.010 art. VII (providing that compact administrators have “the power to promulgate rules and regulations to carry out more effectively the terms and provisions of [the ICPC]”), with RCW 13.24.011 art. IV(2) (providing that the interstate commission for juveniles has the power to “[a]dopt rules to effect the purposes and obligations of [the interstate compact on juveniles] which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact”).
Green v. Div. of Family Servs., 864 A.2d 921, 928 (Del. 2004).
In re Dependency of J.B.S., 123 Wn.2d 1, 8-9, 863 P.2d 1344 (1993).
McComb, 934 F.2d at 481.
An administrative rule has the force of law only if the agency promulgated it with delegated authority. Campbell v. Dep’t of Soc. & Health Servs., 150 Wn.2d 881, 892, 83 P.3d 999 (2004). “[A]n agency does not have the power to promulgate rules that amend or change legislative enactments” but it may “ ‘fill in the gaps’ in legislation” where necessary to effectuate a general statutory scheme. Green River Cmty. Coll. v. Higher Educ. Pers. Bd., 95 Wn.2d 108, 112, 622 P.2d 826 (1980)
Given our disposition, we do not address Vemer’s argument that if the ICPC applies to parental placements, it violates due process.