In re Emoni W.

Connecticut Supreme Court (SC 18841)

Application of the Interstate Compact on the Placement of Children (ICPC) to Nonresident Parents

In this case, the Connecticut Supreme Court examined whether Connecticut General Statute § 17a-175 applied to a non-custodial, out-of-state parents.

As a threshold matter, the Court held the Appellate Court improperly determined the respondent father’s appeal did not fall within the “capable of repetition, yet evading review” exception to the mootness doctrine, even after the father was approved through the in Interstate Compact process and the period of court-ordered Protective Supervision expired.  The majority then held that the Interstate Compact on the Placement of Children (ICPC) process does not apply to non-custodial, out-of-state parents.

 

In this case, the children lived in Connecticut with their mother until she was arrested and charged with risk of injury to a child and various drug offenses.  The children were removed from their mother’s care.  The Department of Children and Families (“DCF”) learned the children’s father lived in Pennsylvania and had cared for the children for extended periods of time.  Respondent father requested that the children come live with him in Pennsylvania.  At the order of temporary custody hearing, respondent father requested he obtain custody of the children.  The request was not acted on by the court.  Instead, the court scheduled a contested hearing to determine, inter alia, whether C.G.S. § 17a-175 applied to a non-custodial, out-of-state parent, and ordered DCF to initiate the ICPC process to determine whether placing the children with respondent father was contrary to their interests. The court ultimately held that C.G.S. § 17a-175 applied to the placement of a child with a noncustodial, out-of-state parent.  Both the respondent father and children appealed.

 

During the pendency of the appeal, the trial court received the results of the compact study authorizing placement of the children with their father.  The superior court also adjudicated the children neglected and placed the children with their father with six months of Protective Supervision.

After the respondent father was awarded custody, the Appellate Court ordered the parties to file supplemental briefs to address whether the claims raised by appellate father regarding the inapplicability of the ICPC to non-resident parents were moot and, if so, whether the claims fell within the “capable of repetition, yet evading review” exception.  The Appellate Court ultimately dismissed the appeals for lack of subject matter jurisdiction reasoning the claims were indeed moot and did not fall within the “capable of repetition, yet evading review” exception.

 

The respondent father appealed to the Connecticut Supreme Court claiming the Appellate Court improperly determined that his appeal did not fall within the exception to the mootness doctrine, and that the trial court improperly concluded that C.G.S. § 17a-175 applied to non-custodial, out-of-state parents.

 

The Connecticut Supreme Court first examined whether the Appellate Court improperly determined that respondent father’s appeal did not fall within the “capable of repetition, yet evading review” exception to the mootness doctrine. The Court noted that in order to qualify for review under this exception, three requirements must be met.  “First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995).  The Court found there was no dispute as to the second or third prong of the test.  A question remained whether the statute applied to the substantial majority cases and, if so, the statute will evade review because the claims become moot before the appeal is concluded.  The Court agreed that the statutory construction claim alone did not evade review because there are a substantial number of parents who will be denied under the ICPC and their claims would be reviewable.  However, the Court reasoned that the respondent father’s constitutional claim, namely that his substantive due process claim to parent was unduly interfered, did evade review, because this claim could only be brought by someone whose ability to parent the child was delayed but not denied by the ICPC process.  The Court differentiated between such a substantive due process claim and a related but distinct procedural due process claim that the ICPC violates the rights of the non-resident parent by not allowing for judicial review of the receiving state’s administrative decision.  The Court concluded that the father’s claim met the Loiselle exception requirement.

 

The Court then examined whether the ICPC process applied to non-custodial, out-of-state parents.  After reviewing the statute, the majority reasoned that the express language of the statute did not indicate that the state legislature intended to apply the compact to out-of-state parents.  The statute plainly and unambiguously limited the application of the compact to placement in foster care or as a preliminary to a possible adoption.

The majority specified that both DCF and the respondent father agreed that, if a child is in the custody of DCF, then an out-of-state parent must appear at a preliminary hearing concerning placement of the child.  The Court noted it was important for the out-of-state parent to be present to answer questions and agree to the reasonable conditions on the placement of the child with the parent.

 

The dissent (J. McLachlan and J. Zarella) opined that the Court does not have subject matter jurisdiction over the appeal due to the matter having become moot.  The dissent did not agree with the majority’s conclusion that the issue will evade review in a substantial majority of future cases.

 

In re Emoni W., 129 Conn. App. 727, 21 A.3d 524, cert. granted, 302 Conn. 917, 27 A.3d 369 (2011) (argued, March 16, 2012) (Tammy)

The central issue in this case is whether the Interstate Compact on the Placement of Children (ICPC) applies to a child’s placement with a nonresident parent where the child welfare agency or juvenile court is effectuating the placement.

The children were removed from the custody of the respondent mother pursuant to Orders of Temporary custody.   At the OTC preliminary hearing, the respondent father, who lived in Pennsylvania, asked that the court allow him to take custody of the children.  He argued that General Statutes § 17a-175, which contains Connecticut’s version of the Interstate Compact on the Placement of Children (ICPC), did not apply because he was the children’s noncustodial parent.  The trial court disagreed and held that the ICPC does apply to the placement of children with their out-of-state noncustodial parents.  The father and the children appealed from this judgment.

While the appeals were pending, the trial court received the ICPC study, which authorized the placement of the children with the father in Pennsylvania, if the court would order six months of protective supervision.  The court adjudicated the children as neglected, granted the parents joint legal custody, with physical custody in the father under six months protective supervision.  At the time the appeal was heard, the children were living with the father, and the order of protective supervision had expired.  Due to these circumstances, the Appellate Court determined that the appeals were moot in that “there is . . . no practical relief that we can provide to the [father] or the children.”  In re Emoni W., supra, 129 Conn. App. 733.  Moreover, the court determined that the claims did not meet the “capable of repetition, yet evading review” exception to the mootness doctrine.  Id.

The Supreme Court granted the father’s petition for certiorari as to the following issue: “Did the Appellate Court properly dismiss the appeal as moot?  If the answer to the first question is in the negative, does General Statutes § 17a-175 apply to an out-of-state, noncustodial parent?”  In re Emoni W., supra, 302 Conn. 917.

 

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.

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