In a family law case of first impression for the Appellate Division, First Department, the court expressly disagrees with the both the Second Department and interstate regulations to find that an interstate compact for child placement—and the delay and uncertainty it creates—cannot be used to block out-of-state parents from promptly taking custody of their own needy child.

To allow such delay or, in some instances, even a denial of custody to fit parents, writes First Department Justice Troy Webber, would be to “fl[y] in the face of New York's policy of keeping 'biological families together.'”

Moreover, it would “infringe[] upon that parent's constitutional rights,” Webber wrote on behalf of a unanimous panel.

Her decision then vigorously knocks back both the Second Department's precedential view of the issue as well as regulations promulgated by the interstate administrative body charged with overseeing the statute, called the Interstate Compact on the Placement of Children.

The central issue before the First Department in In re Emmanuel B. was whether the compact can apply its system of bureaucratic checking and approval for placement of often-neglected children to noncustodial parents living outside of New York State. For years, it had only applied its system to out-of-state foster or adoptive parents wishing to take in a New York child.

The case itself sprung from the plight of young Emmanuel, who in 2017 was just 2 years old when the city's Administration for Children's Services alleged that his mother was neglecting him, failing to properly feed him and slapping and biting him, which led to her losing custody of her son, the opinion said.

Then as Emmanuel stayed with a paternal aunt, his father, Andrell B., a New Jersey resident, stepped forward to seek custody of the boy. But at a 2018 hearing before Bronx Family Court Justice Alma Gomez, ACS argued that compliance with the compact was mandatory for the out-of-state father. And Gomez soon agreed, writing in a decision that Andrell “as a non-custodial, non-resident parent, does not have custody or possession of the child as a matter of parental right” and that he “requires parental authority to be conferred on him by the state,” according to Webber's quoting of Gomez.

On Wednesday, Webber, joined by panel Justices David Friedman, Judith Gische, Marcy Kahn and Jeffrey Oing, reversed Gomez's decision while addressing a legal issue that ACS had argued was moot, since, as the appeal was pending, Andrell B. had been approved under the compact process.

Citing exceptions to the mootness doctrine, Webber and the panel wrote that “this is an issue that is most likely to recur” in future cases, and that “ambiguity clearly exists as to the applicability of the ICPC [compact] to an out-of-state noncustodial parent, as demonstrated by the decisions rendered by courts in New York and other states.”

Moreover, wrote the justice, “This appeal grapples with important issues, such as whether applying the ICPC in such a manner is contrary to the plain meaning and legislative history of the statute, and whether it conflicts with a parent's right to substantive and procedural due process, which warrant review by this court.”

Then she proceeded to explain why the compact was never meant to apply to noncustodial out-of-state parents to begin with, and why applying it to them was stripping them of constitutional rights. At the same time, Webber and the panel chopped away at the administrative body's 2011 decision to extend the statute's reach to out-of-state parents, while similarly saying that the Second Department had simply gotten it wrong in previous rulings—at least in part because of a “fundamental misreading” of a Court of Appeals decision.

Addressing the Association of Administrators of the ICPC's choice to amend an ICPC regulation in 2011, Webber wrote that “the AAICPC expanded the statute's reach in a way that was not only outside the [original] statute's scope, but contravened the will of the [state] legislature to provide more opportunities for children in need of placements.”

“Thus,” she said, “we find that Regulation 3 does not carry the force of law.”

And, indeed, earlier in the lengthy opinion she had written that “based on the plain language … of the ICPC, the conditions for placement were expressly aimed at placements in foster care or adoptive settings.”

Webber also noted later in the decision that “it is somewhat ironic that a statute with a stated purpose of providing more opportunities for children in need of placement would be construed to effectively prohibit the placement of a child with a natural parent.”

On the Second Department's opposing view on the appropriate reach of the compact, Webber said, “We decline to follow its interpretation, because in our opinion it conflicts with the plain meaning of the statute and is in contravention of its legislative history.”

“As a threshold matter,” she also wrote, “this line of [Second Department] cases relies on a fundamental misreading of the Court of Appeals decision in Matter of Shaida W. (85 NY2d 453 (1995)), where the court applied the ICPC to a kinship foster care placement,” as opposed to a non-foster-care situation involving a parent.

In yet another opinion section, Webber and the panel pointed out that the compact's vetting and approval protocol for prospective guardians can reportedly take months or “even years.”

She wrote that “in recognizing fundamental constitutional principles of due process and protected privacy, New York courts have consistently held that the state 'may not deprive a natural parent of the right to the care and custody of a child absent a demonstration of abandonment, surrender, persisting neglect, unfitness or other like behavior evincing utter indifference and irresponsibility to the child's well-being,” quoting Matter of Marie B., 62 NY2d 352, 358 (1984).

“We [also] acknowledge the arguments of the amici curiae, Lawyers for Children Inc., and The National Association of Counsel for Children, who convincingly assert that, based on social science, medical research, and their 'on the ground' experience, applying the ICPC to out-of-state parents—given the possibility that the process could keep a child in foster care, and apart from a loving, competent parent—harms children.”

On Thursday, Claire Merkine of The Legal Aid Society of New York, which represented Emmanuel B. and launched the appeal of Gomez's 2018 decision, said that for more than a decade, Legal Aid has been “trying to challenge” ICPC regulations and associated rulings that it views as both unconstitutional and harmful to children and parents alike.

“The import of this is that when you have a child who has a loving, fit parent to go to out of state, now the Family Court can make the decision to send the child to that parent, without the child having to languish in foster care for months on end, waiting for the approval process to be complete,” said Merkine, a staff appellate attorney who briefed and argued the issue to the First Department.

Moreover, she claimed, “there are instances of [out-of-state] parents who have not been approved [for custody by ICPC administrators] on grounds that would not pass muster if the parent lived in New York.”

The city Law Department represented ACS, the respondent in the appeal, as they argued for upholding Gomez's decision and for allowing the compact to apply to noncustodial out-of-state parents.

The Law Department did not provide a comment Thursday. It said only that it was “reviewing the decision.”