FROM THE ALABAMA LAWYER: Interstate Adoptions
Published on May 11, 2022
By Jared N. Lyles
The Interstate Compact on the Placement of Children act (the ICPC) was put into place to encourage the cooperation and communication between state authorities that are involved in the interstate placement of children in foster care or for adoption.
For the purposes of this article, with some exceptions (more about those in a minute), when a child crosses states lines for the purpose of adoption – whether the child is sent through an agency or a person in the business of placing children for adoption or by a state government – the ICPC applies.
When the ICPC Applies
The ICPC applies to sending agencies. It then defines a sending agency quite broadly as “a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency or other entity which sends, brings or causes to be sent or brought any child to another party state.” Those sending agencies are not allowed to “send, bring or cause to be sent or brought into any other party state any child…as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state.”
Basically, a child can’t be sent by a state, a court of a state, or any sort of child-placing organization into another state for the purpose of placing the child in foster care or for adoption, unless the other state agrees through the ICPC process.
When ICPC Does Not Apply
Certain family members are excluded from the ICPC. It does not apply when this is done by a “parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt or his guardian and leaving the child with any such relative or nonagency guardian in the receiving state.” Essentially, the ICPC does not apply when a family member brings a child to another state so that the child could remain with another relative or a guardian.
Because the ICPC applies only to out-of-state placements of children in foster care or for adoption, the ICPC does not apply in simple non-dependency custody cases – your run-of-the-mill domestic case. For instance, the ICPC does not apply to divorce custody actions or to a custody action between the child’s parents and third parties (for example, grandparents).
Let’s make up an example and see how this works: Perhaps your clients, the Smiths (who are Alabama residents), have a longtime friend who was about to have a child in Florida who she could not care for. The friend called the Smiths and asked them to adopt her child. They agreed, left Alabama, and arrived at the hospital in Florida. The Smiths worked with a hospital social worker to obtain the right paperwork and signatures needed to transition custody. The biological mother signed a voluntary delegation of authority to the Smiths. The social worker knew that your clients live in Alabama and didn’t mention any other statutes or requirements. Having returned to Alabama, the Smiths engaged your services to petition for adoption.
When you send notice of the adoption petition to State Department of Human Resources (SDHR) pursuant to Ala. Code § 26-10A-17, SDHR may send an acknowledgement letter to the probate court raising concerns that the adoptive petitioners have violated the ICPC, the Child Care Act of 1971, or both.
However, by their plain text, the ICPC and the Child Care Act of 1971 do not apply to wholly private adoptions. They regulate only adoptions by “sending agencies” and the “placing” of children for adoption from out of state. In the event DHR argues that the Smiths’ adoption petition violates these statutes because the child was a resident of another state and brought into this state for the purpose of adoption, do not be alarmed. You can argue that DHR’s interpretation is too broad. When examined, the statutes do nothing to prohibit, or even to regulate, the Smiths’ adoption petition.
The ICPC is expressly inapplicable to arrangements made by a qualifying relative – a parent, stepparent, grandparent, adult brother, adult sister, adult uncle, adult aunt, or guardian – who leaves the child with a “non-agency guardian,” which aptly describes your clients, the Smiths. If the drafters had intended Article III to apply to placements with all persons, they could have used that language in that article. However, they did not. We are left with the plain language of the article as written. Therefore, the ICPC “shall not apply.”
Likewise, the Child Care Act of 1971 (CCA) should not present a concern. Section 38-7-15 provides that “[n]o person or agency shall bring. . .any child into the State of Alabama. . .without first obtaining the consent of the department.”
First, the CCA predates the ICPC. The CCA was adopted in 1971 (Acts 1971, 3rd Ex. Sess., No. 174, p. 4423, § 1), and the ICPC was adopted in 1979 (Acts 1979, No. 79-675). These statutes cover similar, but not identical, subjects. Though it is entirely possible that the ICPC supersedes the CCA, there is no case law on this issue.
Second, the Alabama Court of Civil Appeals has already addressed the effect of § 38-7-15 on adoption petitions. In Wolf v. Smith, the biological mother, then living in Texas with the child, decided to consent to an adoption by acquaintances of her friend in Alabama. Later, the biological mother sought reversal of the final decree of adoption. She argued that the adoptive parents failed to obtain the consent of the state before bringing the child into Alabama pursuant to § 38-7-15. The Alabama Court of Civil Appeals held that: “[T]he obvious purpose of the statute is to insure a full disclosure of all pertinent information on a child being brought into Alabama for adoption. . . In the present case, [the natural mother] was present in the court and questioned by counsel on [her social, background, and medical information]. . . [Information and birth certificates] [were] before the court. . . [A]n in-home investigation. . .was conducted by [the State agency]. . . Thus, all pertinent information on the child which is mandated by the statute was available to the court.”
The court found that where all the necessary and proper information is before the probate court, a technical noncompliance with the statute is a “harmless procedural error.” Finally, the court held that failure to comply with § 38-7-15 does not render an adoption void.
The purposes of the ICPC and the Child Care Act of 1971, particularly when read in conjunction, are intended to prevent both adoption professionals and other states from engaging in adoptions across state lines without communicating with DHR and other states’ ICPC offices. And, indeed in our hypothetical case, the Smiths worked closely with a social worker at the hospital in Florida to obtain the birth mother’s signatures and transition custody of the child. The social worker knew that the Smiths were from Alabama, and all information pertinent to the child’s circumstances had been properly provided to the probate court for consideration. There is no indication in either statute that they are intended to be used to deter situations like the Smiths, where persons with prior friendships or familial relationships choose to transfer parental rights for the benefit of each other and their child, although they happen to live in different states.
In our hypothetical case, you would have many good arguments. Your clients, private parties and friends of the biological mother, received the child from the biological mother, also a private party. Under ICPC, the out-of-state mother caused the child to be brought to Alabama and to be left with a nonagency guardian. Thus, ICPC does not apply due to the very terms of its own limiting language. And case law provides that adopting parents need not comply with § 38-7-15, assuming it has not been superseded by ICPC, because all information pertinent to the child’s best interests is before the probate court.
Neither you nor your clients nor the court nor the state should lose sight of the child’s best interest. If the court questions whether it should proceed with the Smiths’ petition due to concerns over the ICPC or the CCA, you should point the court to the plain text of the ICPC, to the relevant case law, and the particular facts of your case, and that the adoption is in the child’s best interests. You should argue that the child has been in the care of the Smiths since his birth and in their exclusive care since his initial release from the hospital. All these documents have been notarized and executed in accord with the requirements of the adoption code. A pre-placement or post-placement home study has been or will be completed soon. The child has bonded and attached to the Smiths and their entire family. There is utterly no evidence to the contrary. Once the time for any contest has passed, nothing should stand in the way of a final decree.
Ultimately, the strongest argument in favor of moving forward with the adoption, despite any misplaced ICPC concerns, boils down to basic American civics. The power of governance is divested into three co-equal branches of government, whose individual powers are held at bay through checks and balances. The legislature creates executive agencies with certain limited powers. If an executive agency oversteps its enumerated powers, it falls upon the judicial branch – here, the probate court – to hold the executive branch in check.
The ICPC Process
If you have determined that ICPC applies, the first step is to prepare the sending state’s ICPC Form 100A. Many states have created their own form.
Let’s change up our hypothetical to say that the ICPC applies. Your clients would then submit Florida’s 100A form to the Florida Compact office with all necessary supporting documents. If the Florida Compact office approves the ICPC application, it will then send the application to the Alabama Compact office for approval. Note that Alabama is reputed to have some of the highest standards for ICPC in the country – what may suffice for one state doesn’t necessarily suffice for Alabama. Helpful contacts for each state can be found at https://www.icpcstatepages.org/.
In addition to the 100A form, the ICPC packet sent to Alabama should contain:
- the child’s birth certificate and a signed medical examination (or if the child is a newborn, the hospital records);
- the biological parents’ consents, relinquishments, or an order terminating parental rights;
- your clients’ home study;
- a form and written interview regarding social and medical information of the birth parents performed by the state sending agency, a licensed child-placement agency, or licensed social worker;
- an American Indian Heritage Affidavit;
- Legal risk affidavits signed by the adoptive parents if a consent, relinquishment, or termination of rights has not been obtained on the birth father;
- an affidavit waiving the governing law of Florida if the adoption will be finalized in Alabama; and
- a statement of adoption expenses.
The Alabama Compact office may then request more information as necessary to complete the process. Alabama will notify the Florida office of its approval. Once the child has been brought to Alabama to reside with the Smiths, Form 100B, the Report on Child’s Placement Status, will need to be submitted to both the Alabama and Florida ICPC offices. Once the adoption is finalized in Alabama, an additional 100B will need to forwarded to both ICPC offices.
If an agency is in fact involved with the adoption, they should be reminded that violating ICPC may subject the agency to penalties in both the sending and receiving state and constitutes “full and sufficient grounds for the suspension or revocation of any license, permit or other legal authorization held by the sending agency which empowers or allows it to place, or care for children.” 
 Ala. Code § 44-2-20(I) (1975).
 Id. at § 44-2-20(II)(b).
 Id. at § 44-2-20(III)(a).
 Id. at §§ 38-7-1 to -19.
 Id. at § 44-2-20(VIII)(a).
 Id. at § 38-7-15(a).
 Wolf v. Smith, 435 So. 2d 749, 750-1 (Ala. Civ. App. 1984).
 Id. at 752.
 Consider also case law from other states excusing adoptive parents from strict compliance with ICPC: R.F. v. Dep’t of Children and Families, 50 So. 3d 1243, 1246 (Fla. Dist. Ct. App. 2011) (“Although there is a technical non-compliance with the compact, the paramount concern is the best interest of the child. DCF has provided no reason why it is in R.F.’s best interest to return to Florida pending ICPC proceedings and disrupt permanent placement with his family in New York. Rather, DCF has taken an overly legalistic position that cannot be reconciled with the facts in this case.”); In Matter of Adoption of Calynn M.G., 523 N.Y.S. 2d 729 (Sur. Ct. 1987) (“As often happens, children are placed from one compact State into another without observing the compact procedures. . . Rather than leaving this child’s future unsettled. . .the best interests of the child dictate that the child be permitted to remain with the adoptive parents. . .and that the necessary steps be taken to finalize the adoption.”); State Dep’t of Youth and Family Services v. K.F., 803 A. 2d 721, 723, 730 (2002) (“[T]he ICPC does not apply to relative placement and, therefore, it does not require the prior approval of the receiving state when a court in this state has decided against foster care in favor of placing children with their out-of-state maternal grandparents. . . [T]he trial court’s determinations. . .that placement of the children with their maternal grandparents would not be detrimental and was in the best interests of the children are fully supported by the record.”); cf. In re Adoption Guardianship No. 3598, 701 A. 2d 110, 323 (Md. Ct. App. 1997) (“[W]e do not rule out the possibility of a trial court, under appropriate circumstances, dismissing an adoption petition as a violation of the ICPC.”)
 See Interstate/Intercountry Services to Children, Policy and Procedures, effective November 1, 2016, Revision No. 3 (available at https://dhr.alabama.gov/wp-content/uploads/2021/05/00-Interstate-Intercountry-Services-to-Children-Policy.1-doc.pdf).
 Florida ICPC-100A Form (available at http://centerforchildwelfare.fmhi.usf.edu/kb/icpc/100A%20Form%20(CF%20794,%20Oct%2705).pdf).
 Ala. Code § 44-2-20(III)(b).
 Id. at § 44-2-20(III)(c).
 Id. at § 44-2-20(IV).