In re Emoni W. (June, 2011) Connecticut Appellate Court
June, 2011
Application of Interstate Compact on the Placement of Children to Nonresident Parents
Background On July 9, 2010, the children were removed from their mother’s home after she was arrested for various drug charges with intent to sell and for four counts of risk of injury to a child. On July 12, 2010, DCF sought an order of temporary custody. DCF then learned about the children’s father (respondent appellant), who was living in Pennsylvania and had been responsible for the children’s care for extended periods of time. Father now wanted the children to come live with him in Pennsylvania.
At a July 16, 2010 hearing, father argued that the Interstate Compact on the Placement of Children (Conn. Gen. Stat. § 17a-175) (“Compact”) did not apply to him, a noncustodial parent, and requested the court allow him to take the children out-of-state. The trial court found that the requirements of the Compact applied to placement of a child with an out-of-state, noncustodial parent. Both the father and the child appealed.
At a subsequent hearing during the pendency of the appeal, having received the results of a compact study, the court adjudicated the children as neglected and granted joint legal custody to the father and mother, with physical custody to the father. At the time of oral arguments, the children were living with their father. Subsequent to argument, the appellate court requested briefs from the parties as to whether the case was now moot because the children were living with their father. All of the parties, including DCF, agreed that the case was moot but that the case was “capable of repetition but evading review.”
Holding The majority held that the court lacked subject matter jurisdiction over the appeal because the father’s and children’s claims were moot and did not fall into any of the exceptions to the mootness doctrine. The court held that the claims did not fall into the “capable of repetition, yet evading review” exception to the mootness doctrine because the permanent placement of children with an out-of-state noncustodial parent is not inherently time limited, and will, therefore, not cause a substantial majority of cases raising the same issue to become moot prior to final appellate resolution. Further, the issue is not evading review because out-of-state courts turn down Compact applications about fifty percent of the time, and the Appellate Court can grant relief in those cases.
Dissent (Bishop, J.) The dissent would hold that this case qualifies under the “capable of repetition, yet evading review” exception to the mootness doctrine because approximately 73 percent of interstate compact requests are completed prior to oral arguments can be heard on appeal, citing statistical information presented by the Department of Children and Families in support of continuing appellate court jurisdiction.
The dissent then determined that the Compact statutory language is unambiguous and does not apply to out-of-state, noncustodial parents. The Compact notice section indicates that it applies to placements for “foster care” or “adoption.” Placement with a parent cannot constitute a foster or adoptive placement. Judge Bishop wrote that the drafters of the Compact did not intend to burden parents with the same requirements as those individuals or agencies seeking to adopt children or provide foster care to children to whom they are not related. DCF cited corresponding regulatory language that broadened the scope of the Compact to nonresident parents. However, to the extent that such regulations conflicted with the plain language of the statute itself, the regulations were void.
The dissent noted that the only federal circuit court to address this issue, McComb v. Wambaugh, 934 F.2d 474, 480 (3d Cir. 1991), concluded that, “[t]he scope of the Compact is carefully limited to foster care.
