WEBVTT
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SJC-13668
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in the matter of an impounded case.
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We're gonna break after this one too?
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Yeah, yeah, for sure.
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(papers shuffling)
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Okay, Attorney Driscoll-Weiss, whenever you're ready.
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Thank you Your Honor.
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May it please the court,
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Roberta Driscoll-Weiss today on behalf
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of the appellant children.
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With me is Attorney Jamie Wallerstein,
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who is trial counsel for the children.
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I have two requests of the panel today.
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First, I would ask that this court rule
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on the application of the Interstate Compact
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for the Placement of Children,
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which I will be referring to as the ICPC
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for the rest of my argument.
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We're asking the court to hold that the ICPC
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applies when a child is sent across state lines
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for the purposes of foster care or adoption,
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not as was proposed in this case
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for a custodial determination of custody
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through a guardianship.
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And I think-
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Can you explain to me
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what the status is of the guardians?
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As I understand a proposed guardianship,
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as I understand it, they are not present
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participating in this appeal.
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The guardians filed a motion to,
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for a late notice of appeal to join with-
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Right.
Childs-
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And that was denied without prejudice
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and I just don't know if they actually did
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file a notice of appeal.
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They didn't file a notice of appeal, Your Honor,
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what they filed was a status report
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indicating their continued commitment to these children,
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as I noted in my reply brief.
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But aren't they a necessary party for these proceedings?
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I think-
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[Justice Wendlandt] That is what remedy should we order?
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Right.
You know?
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Assuming we agree with your argument,
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we don't have a guardian before us as a matter
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of their posture in this case that we,
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whose rights are being affected.
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In their status report, they did indicate
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their continued commitment, which I would aver again today.
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But, as I pointed it in my reply brief,
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this is a matter that is certainly capable of repetition
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yet evading review and in fact could be repeated-
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So we would say this matter,
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we can't decide for these particular children
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because we need the guardians present in order
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to affect their rights but going forward,
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FYI, the ICPA doesn't apply or does apply.
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I would-
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As sort of a-
Yeah.
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[Justice Wendlandt] As a dicta, you know?
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Because you seem to be melding in a mootness issue,
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and that's not really what this issue is.
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This really is a question of whether or not,
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whatever we do, let's say we agree and you win, right?
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We don't have the great aunt and uncle saying,
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"Yeah, we would like to do so."
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Forget about previous flares,
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about they would be willing to do so.
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We don't have that here.
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Then what I would ask this court to do, Your Honor,
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would be to remand the matter back to the trial court
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for an evidentiary hearing on the suitability
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of the proposed guardians.
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In essence, to rehear the Petition for Guardianship
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in the trial court
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with an evidentiary hearing, which was denied.
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But by not appealing, the guardians
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have accepted the finality of that decision.
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And I think that's my point, Your Honor,
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is that I don't think that they did.
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I think that-
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But how do I know that?
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Is it just this notice of continuing interest
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that you're saying I should read
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as effectively an appeal?
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Yes.
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And in fact, Your Honor,
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they could simply file another guardianship
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and start the whole process again.
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When I say this is capable of repetition,
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it could be repeated in this exact same case again.
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And so I think as a matter of, you know, judicial economy
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and as a matter of law going forward,
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the ICPC, as we all know, is something that is,
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we are being confronted with quite frequently
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in recent months and weeks.
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And so I would ask the panel
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to hear the-
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You don't represent-
Argument of the parents.
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[Justice Wendlandt] You don't represent
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the proposed guardians, do you?
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I do not.
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I represent the appellant children.
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Right.
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And I didn't see the status report that you're referring to.
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I didn't see it in the record.
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Is it in the record?
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I included it in the addendum
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for my reply brief.
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Okay.
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I believe it's the last two or three pages.
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What we received from the appeals court
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was essentially directive pursuant
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to guardianship of Tara,
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where that in guardianship of Tara,
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there was no indication at all
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that the guardians had any continued interest
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in serving as guardians.
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And so, the status report was an attempt
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to address the specific directive from the appeals court
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about their continued commitment.
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Their request to appeal was to simply join child's,
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join the brief that I filed on behalf of the children.
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[Justice Wendlandt] You said the guardians
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have joined your brief?
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No, that was their request when they filed
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the motion for a late notice of appeal
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was that they just simply be allowed
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to join the child's brief,
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not to hold up the matter by filing a separate brief.
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That was the motion that was denied, Your Honor.
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Were they represented by counsel in the trial court?
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They were not.
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And they're not represented by counsel now.
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And, you know, I apologize if the status report
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was inadequate.
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I would perhaps-
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Well, normally you'd need to appeal
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a decision below in order to participate,
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but I take it that all we have is the status report.
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And again, Your Honor, they would certainly today
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file another guardianship petition in the juvenile court.
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[Justice Wendlandt] Or a notice of appeal.
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It might be issue conclusion or,
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there may be problems with that.
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But, can we get to the merits 'cause-
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Yeah.
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So, you rely on this law review article,
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this Yale Law Review article,
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for your substantive position.
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Is that a distinct minority position,
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both rejected by the feds and the state?
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Or is there, I'm just trying to get a sense of,
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I understand academics often, you know,
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think we're over reading things or under reading things,
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but is there,
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is this a distinct minority position you're pushing?
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I don't believe that it is, Your Honor,
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I think in my brief I outlined that there are a number
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of other jurisdictions that have held
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as I would be asking this court to hold
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that the terms of the ICP as drafted,
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as codified in 119 APP Section 2-1,
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very clearly state that the purpose of the ICPC
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is first to create uniformity.
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But, and just to push you a little bit,
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are there any cases like this
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as opposed to a family type of guardian?
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You know, someone gets divorced and they're shifting.
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Are there any cases like this where a court
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in a DCF type of case has done this kind of thing
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and it's found to be permissible?
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Because I read through quickly your cases,
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at least the parentheticals, they seem all distinguishable.
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Are there any cases like this where a court
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is assigning out of state and the receiving state
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is rejecting it?
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Anything like this?
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The Inray Imani case in New Hampshire,
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I believe was a similar state intervention type of matter.
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If not, I would be happy to respond by letter.
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I apologize.
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I can't answer the question at the moment,
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but I think what,
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just going back to the substantive argument,
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there's one reading of the ICPC that both comports
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with the language of the statute
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and therefore the legislative intent in adopting the statute
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and the other relevant statutes
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that come into play in these types of-
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But it's rejected by the regulations, right?
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The regulations say the exact opposite.
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Well-
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It's a question, not an answer yet.
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Is that right?
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The regulations reject your interpretation, right?
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The DCF as the compact administrator
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is allowed to promulgate regulations
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that aid in the furtherance of the compact itself.
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And I argue that their regulations
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are overreaching and overbroad,
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given what those regulations are intended to do.
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They're intended to assist DCF as the compact administrator
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in administering the compact.
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But the compact as written is very clear
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that it refers to placement, not custody.
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It doesn't use the word custody.
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It uses the word placement
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and it applies to placement for the purpose
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of foster care or adoption.
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And when you look at the other relevant statutes
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that are implicated in child welfare cases like 190B,
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which is the guardianship statute,
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209B, which is the Mass Child Custody Jurisdiction Statute,
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there are very clear antagonism.
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There's very clear antagonism between them.
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For example, Section 5 of the ICPC requires
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that the sending agency, in this case, Massachusetts,
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would retain jurisdiction over all matters pertaining
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to the children,
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healthcare, schooling, et cetera.
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And if you think of a guardianship case,
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the guardianship statute very clearly says
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that these are responsibilities
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that are given to the guardian.
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At least for the initial transfer, right?
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Guardianship.
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In here the guardians,
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the grand guardians on all reports, wonderful people
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and it'd be a great match.
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But if that were not the case,
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how does DCF ensure itself
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that they're not sending these children
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to a bad situation out in another state?
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So which is, and in my brief,
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I argue that the children were denied due process
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because there was no evidentiary hearing.
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In a guardianship petition, the petition is filed
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with notice to the opposite, to the other side,
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requesting a full evidentiary hearing,
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in which case the home study
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from a licensed adoption agency in Pennsylvania,
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which was, as you know, glowing
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and she went as far as to say,
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"I don't ever make recommendations,
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but in this case I'm going to,
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and I'm gonna recommend these folks as guardians
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because they are perfectly appropriate."
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This is a matter that should have been tried
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before the judge.
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The judge should have-
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It should have been tried in here or in Pennsylvania
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'cause seems like your beef is with Pennsylvania
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that they're doing something unconstitutional
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by depriving these very capable guardians
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based on something that happened 17 years ago
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but there's gotta be a way of appealing
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that in Pennsylvania.
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Well, it has to be.
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If something's unconstitutional, I mean,
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I'm not an expert in Pennsylvania law,
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but you're,
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it seems like you should be in Pennsylvania, not here.
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If I could just clarify one point which,
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and I think it was not clear to me until,
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actually until I read the department's brief,
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the statute in Pennsylvania
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that the ICPC compact administrator in Pennsylvania
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relied on in denying the guardian's home study
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is a statute, it is, pardon me,
272
00:12:46.650 --> 00:12:50.370
23 Pennsylvania CS 6344.
273
00:12:50.370 --> 00:12:54.720
And, it applies to employment.
274
00:12:54.720 --> 00:12:58.680
So it's a statute that governs who can be employed
275
00:12:58.680 --> 00:13:00.540
or volunteer with children.
276
00:13:00.540 --> 00:13:02.070
So a Boys & Girls Club
277
00:13:02.070 --> 00:13:05.910
or a daycare center would,
278
00:13:05.910 --> 00:13:09.390
this statute would govern those individuals.
279
00:13:09.390 --> 00:13:11.460
And it applies to foster parents.
280
00:13:11.460 --> 00:13:13.860
It does not apply to guardians.
281
00:13:13.860 --> 00:13:17.910
And yet, the ICPC provides no independent right
282
00:13:17.910 --> 00:13:21.510
of review in Pennsylvania for a family
283
00:13:21.510 --> 00:13:25.080
who's been denied an ICPC home study.
284
00:13:25.080 --> 00:13:27.360
And when you contrast that with Massachusetts,
285
00:13:27.360 --> 00:13:29.520
which for example, the testimony
286
00:13:29.520 --> 00:13:32.250
or the commentary by the DCF attorney
287
00:13:32.250 --> 00:13:34.590
during the hearing was if this was Massachusetts,
288
00:13:34.590 --> 00:13:37.050
we would've waived this criminal record issue.
289
00:13:37.050 --> 00:13:38.610
It was 26 years ago.
290
00:13:38.610 --> 00:13:43.260
But how does that not make Justice Kafker's point?
291
00:13:43.260 --> 00:13:45.660
Because what we're looking to here
292
00:13:45.660 --> 00:13:49.380
is what did the trial judge here do wrong?
293
00:13:49.380 --> 00:13:52.388
And if the beef is, we couldn't appeal it
294
00:13:52.388 --> 00:13:54.660
in Pennsylvania.
295
00:13:54.660 --> 00:13:58.020
Pennsylvania, even though you're saying potentially whatever
296
00:13:58.020 --> 00:14:02.400
they use to deny the placement is not applicable
297
00:14:02.400 --> 00:14:05.850
to a home study for a guardianship petition.
298
00:14:05.850 --> 00:14:08.970
That's all Pennsylvania's stuff.
299
00:14:08.970 --> 00:14:11.640
So why is it that the trial judge was wrong here
300
00:14:11.640 --> 00:14:15.720
to say they won't receive it, so I'm dismissing it?
301
00:14:15.720 --> 00:14:17.430
Because the ICPC shouldn't apply
302
00:14:17.430 --> 00:14:19.110
in the case of a guardianship.
303
00:14:19.110 --> 00:14:22.127
And, that's why I say when you look at the ICPC
304
00:14:25.110 --> 00:14:27.597
together with other relevant statutes,
305
00:14:27.597 --> 00:14:32.597
119-26 says that after parents are found unfit,
306
00:14:32.670 --> 00:14:37.230
the judge has a list of options available to him or her.
307
00:14:37.230 --> 00:14:41.580
One of those options is to give custody to any person
308
00:14:41.580 --> 00:14:43.530
that's in the best interest of the child.
309
00:14:43.530 --> 00:14:45.907
But here we have the ICPC that says,
310
00:14:45.907 --> 00:14:48.600
"Well, sorry judge, you can't do that."
311
00:14:48.600 --> 00:14:52.890
Because we have this foreign, administrative agency
312
00:14:52.890 --> 00:14:55.170
that has made this anonymous declaration
313
00:14:55.170 --> 00:14:57.496
that these people are not suitable.
314
00:14:57.496 --> 00:14:58.329
Okay, let me-
315
00:14:58.329 --> 00:14:59.162
And there's no right of appeal.
316
00:14:59.162 --> 00:15:00.480
Well, let me just press this a little bit.
317
00:15:00.480 --> 00:15:03.900
So you are saying that the regulations
318
00:15:03.900 --> 00:15:08.070
where they say it does subsume guardianship,
319
00:15:08.070 --> 00:15:11.910
even though you're saying that the ICPC does not say that,
320
00:15:11.910 --> 00:15:14.490
that there's this disconnect with how they're looking at it.
321
00:15:14.490 --> 00:15:19.110
Well, if the ICPC calls for adoption
322
00:15:19.110 --> 00:15:21.570
and we agree that it says adoption,
323
00:15:21.570 --> 00:15:26.553
how can a lesser placement not be within,
324
00:15:28.650 --> 00:15:31.617
be subsumed by the ICPC?
325
00:15:31.617 --> 00:15:33.300
But I think it could.
326
00:15:33.300 --> 00:15:34.405
I think-
327
00:15:34.405 --> 00:15:35.430
Well, the regulations say it could.
328
00:15:35.430 --> 00:15:38.220
But I think the difference here
329
00:15:38.220 --> 00:15:42.810
is the manner in which children are placed for adoption.
330
00:15:42.810 --> 00:15:45.930
They're placed by DCF in a home
331
00:15:45.930 --> 00:15:48.930
that has been licensed or is undergoing licensure
332
00:15:48.930 --> 00:15:50.730
for adoption.
333
00:15:50.730 --> 00:15:52.800
It's not the judge that places the children
334
00:15:52.800 --> 00:15:55.050
with those particular individuals.
335
00:15:55.050 --> 00:15:56.430
It's the department.
336
00:15:56.430 --> 00:15:58.950
Guardianship is a different animal altogether
337
00:15:58.950 --> 00:16:01.020
because it's a custodial determination
338
00:16:01.020 --> 00:16:04.170
made by a judge after an evidentiary hearing.
339
00:16:04.170 --> 00:16:05.640
So we're not asking that,
340
00:16:05.640 --> 00:16:08.070
we're not saying that DCF made a mistake here
341
00:16:08.070 --> 00:16:09.660
by not placing the children.
342
00:16:09.660 --> 00:16:11.610
DCF's hands were tied,
343
00:16:11.610 --> 00:16:14.490
but I don't believe the judge's hands were tied
344
00:16:14.490 --> 00:16:18.660
because the guardianship petition was a vehicle
345
00:16:18.660 --> 00:16:21.030
to get these two children, who,
346
00:16:21.030 --> 00:16:24.450
if I could go to the second portion of my argument
347
00:16:24.450 --> 00:16:27.270
is these are two children who are placed separately.
348
00:16:27.270 --> 00:16:30.090
One has a potential adoptive placement
349
00:16:30.090 --> 00:16:32.070
that will not adopt the other.
350
00:16:32.070 --> 00:16:34.680
So the only chance that these two children have
351
00:16:34.680 --> 00:16:38.370
of being raised together and being raised together
352
00:16:38.370 --> 00:16:41.490
with family was this guardianship petition.
353
00:16:41.490 --> 00:16:43.980
Well no, there's another chance, which is,
354
00:16:43.980 --> 00:16:48.360
had you brought lawsuit in Pennsylvania and fixed this,
355
00:16:48.360 --> 00:16:51.900
Massachusetts would immediately send the kids there
356
00:16:51.900 --> 00:16:54.630
because Massachusetts is comfortable with this.
357
00:16:54.630 --> 00:16:56.940
But what you're asking us to do
358
00:16:56.940 --> 00:16:58.380
is you're asking Massachusetts
359
00:16:58.380 --> 00:17:02.340
to send these children somewhere where Pennsylvania
360
00:17:02.340 --> 00:17:04.833
said it's not appropriate.
361
00:17:05.760 --> 00:17:08.223
And that's a much more complicated problem than-
362
00:17:09.210 --> 00:17:10.350
Respectfully, Your Honor,
363
00:17:10.350 --> 00:17:12.750
and I apologize if that's the impression that I gave,
364
00:17:12.750 --> 00:17:15.390
because that is not, that is absolutely not what I'm asking.
365
00:17:15.390 --> 00:17:17.550
What I'm asking Massachusetts to do
366
00:17:17.550 --> 00:17:21.810
is to look at the four corners of the ICPC
367
00:17:21.810 --> 00:17:25.380
and decide that this is where the ICPC applies
368
00:17:25.380 --> 00:17:29.160
as it is drafted, as it was adopted by the legislature.
369
00:17:29.160 --> 00:17:33.810
And when, if in that circumstance,
370
00:17:33.810 --> 00:17:37.050
what the trial judge found here was these are great people,
371
00:17:37.050 --> 00:17:39.660
love these people, don't have any problem with these people,
372
00:17:39.660 --> 00:17:44.660
but the intent or the spirit of the ICPC is violated here.
373
00:17:45.540 --> 00:17:49.620
And what I'm saying is the spirit of the ICPC doesn't apply
374
00:17:49.620 --> 00:17:51.600
to a guardianship at all.
375
00:17:51.600 --> 00:17:52.920
It's the difference
376
00:17:52.920 --> 00:17:55.680
between an administrative agency placement
377
00:17:55.680 --> 00:17:58.080
and a custodial decision by a judge
378
00:17:58.080 --> 00:18:02.100
and I think to tie the judge's hands by this broad,
379
00:18:02.100 --> 00:18:06.240
expansive and really unsupported reading
380
00:18:06.240 --> 00:18:11.160
of the ICPC is to do the juvenile court a great disservice.
381
00:18:11.160 --> 00:18:13.830
This is, not only is this capable of repetition
382
00:18:13.830 --> 00:18:17.280
in this particular case, but this is a situation
383
00:18:17.280 --> 00:18:20.850
that we face in the juvenile court almost on a daily basis
384
00:18:20.850 --> 00:18:22.414
because of the ICPC.
385
00:18:22.414 --> 00:18:24.323
[Justice Wolohojian] May I ask a question?
386
00:18:25.290 --> 00:18:27.960
Was your petition a permanent guardianship,
387
00:18:27.960 --> 00:18:29.640
petition for permanent guardianship?
388
00:18:29.640 --> 00:18:30.780
Yes, Your Honor.
Okay.
389
00:18:30.780 --> 00:18:32.310
And if I recall the rules
390
00:18:32.310 --> 00:18:36.780
for permanent guardianship correctly, which is unlikely.
391
00:18:36.780 --> 00:18:38.333
I doubt that very much.
392
00:18:39.990 --> 00:18:42.780
There's some continuing reporting requirement
393
00:18:42.780 --> 00:18:45.750
that goes back to the court.
394
00:18:45.750 --> 00:18:49.110
It doesn't ever get transferred to the jurisdiction.
395
00:18:49.110 --> 00:18:51.390
Does it ever get transferred to the jurisdiction
396
00:18:51.390 --> 00:18:54.060
where the children then end up residing
397
00:18:54.060 --> 00:18:55.620
or the guardian resides?
398
00:18:55.620 --> 00:18:57.480
It does, and the guardianship statute
399
00:18:57.480 --> 00:19:00.843
provides in section,
400
00:19:02.762 --> 00:19:03.960
hmm.
401
00:19:03.960 --> 00:19:05.640
I wanna say 7.
402
00:19:05.640 --> 00:19:06.720
I could be wrong.
403
00:19:06.720 --> 00:19:08.310
The guardianship statute provides
404
00:19:08.310 --> 00:19:11.430
for guardians to remove children out of state.
405
00:19:11.430 --> 00:19:14.280
That's something that's contemplated within the 209B.
406
00:19:15.582 --> 00:19:16.650
[Justice Wolohojian] And once removed,
407
00:19:16.650 --> 00:19:20.100
they start reporting to the local state.
408
00:19:20.100 --> 00:19:22.530
And then what would happen is one would take that petition
409
00:19:22.530 --> 00:19:26.400
and register it with the foreign court and-
410
00:19:26.400 --> 00:19:27.960
Which we can't do here.
411
00:19:27.960 --> 00:19:29.280
Which you could do here.
412
00:19:29.280 --> 00:19:31.230
I apologize, but I-
413
00:19:31.230 --> 00:19:33.390
So you're saying if the guardianship
414
00:19:33.390 --> 00:19:34.710
were approved here.
415
00:19:34.710 --> 00:19:35.543
Yes.
416
00:19:35.543 --> 00:19:37.260
You're saying that the great aunt and uncle
417
00:19:37.260 --> 00:19:39.330
go back to Pennsylvania
418
00:19:39.330 --> 00:19:42.900
and the reporting requirements of a form that said,
419
00:19:42.900 --> 00:19:44.463
you're disqualified.
420
00:19:45.688 --> 00:19:49.470
But again, and I think this is the conundrum
421
00:19:49.470 --> 00:19:50.940
with the ICPC.
422
00:19:50.940 --> 00:19:54.090
They were disqualified to adopt
423
00:19:54.090 --> 00:19:57.120
because Pennsylvania has a statute
424
00:19:57.120 --> 00:20:01.170
that addresses the verification
425
00:20:01.170 --> 00:20:03.750
of employees that work with children,
426
00:20:03.750 --> 00:20:07.410
volunteer with children, foster parents and adopters.
427
00:20:07.410 --> 00:20:11.790
The statute in Pennsylvania does not say guardianship.
428
00:20:11.790 --> 00:20:13.338
And I think it makes,
429
00:20:13.338 --> 00:20:18.338
I'm not standing here to suggest that the ICPC is wrong.
430
00:20:18.900 --> 00:20:22.530
I think we all recognize that there's a need
431
00:20:22.530 --> 00:20:25.662
for DCF when they place a child
432
00:20:25.662 --> 00:20:27.540
in a family in another state,
433
00:20:27.540 --> 00:20:31.560
there is a need for a mechanism to keep eyes on that child
434
00:20:31.560 --> 00:20:35.250
and to be assured that that child is going
435
00:20:35.250 --> 00:20:37.200
to receive necessary services
436
00:20:37.200 --> 00:20:39.660
because that child remains in the custody,
437
00:20:39.660 --> 00:20:41.820
legal custody of DCF.
438
00:20:41.820 --> 00:20:45.270
But in this case, what the judge would've done
439
00:20:45.270 --> 00:20:47.880
had she allowed the guardianship petition,
440
00:20:47.880 --> 00:20:49.950
was to make a custodial determination
441
00:20:49.950 --> 00:20:53.460
and give custody directly to the M family.
442
00:20:53.460 --> 00:20:58.460
And then under the Uniform Child-Custody Jurisdiction Act,
443
00:20:59.820 --> 00:21:01.350
six months in Pennsylvania
444
00:21:01.350 --> 00:21:05.460
would confer home state jurisdiction on Pennsylvania
445
00:21:05.460 --> 00:21:10.460
and any further issues pertaining to the guardianship
446
00:21:10.620 --> 00:21:12.570
could be heard in Pennsylvania.
447
00:21:12.570 --> 00:21:16.170
This is not an attack on the ICPC at all.
448
00:21:16.170 --> 00:21:20.459
This is an effort to
449
00:21:20.459 --> 00:21:24.210
limit its application to the statutory language
450
00:21:24.210 --> 00:21:27.990
so that it does harmonize with these other relevant statutes
451
00:21:27.990 --> 00:21:29.790
that talk about the difference
452
00:21:29.790 --> 00:21:33.660
between a judicial custodial placement
453
00:21:33.660 --> 00:21:38.040
and a, excuse me, I misspoke,
454
00:21:38.040 --> 00:21:42.900
a judicial transfer of custody versus an agency placement.
455
00:21:42.900 --> 00:21:47.370
And I think what happens is we confabulate
456
00:21:47.370 --> 00:21:49.950
these things in the juvenile court,
457
00:21:49.950 --> 00:21:52.980
but we really need to look at them separately.
458
00:21:52.980 --> 00:21:57.060
And when one does that, it becomes clear
459
00:21:57.060 --> 00:22:00.420
that the ICPC is not intended to apply
460
00:22:00.420 --> 00:22:05.130
to all custody determinations made by a judge,
461
00:22:05.130 --> 00:22:09.360
but rather to placement decisions made by the department
462
00:22:09.360 --> 00:22:12.690
or another similar agency.
463
00:22:12.690 --> 00:22:16.650
You said that the jurisdiction
464
00:22:16.650 --> 00:22:20.460
would go to Pennsylvania in six months?
465
00:22:20.460 --> 00:22:21.930
Under the Uniform Child-Custody
466
00:22:21.930 --> 00:22:23.340
Jurisdiction Act.
467
00:22:23.340 --> 00:22:25.380
But I guess my question is just,
468
00:22:25.380 --> 00:22:29.100
are you satisfied that in six months Pennsylvania
469
00:22:29.100 --> 00:22:30.750
would be like, oh, okay, well,
470
00:22:30.750 --> 00:22:34.920
we didn't like this before, but since they're here
471
00:22:34.920 --> 00:22:39.920
and since it's a guardianship and not a custody placement.
472
00:22:40.380 --> 00:22:42.420
So again, it's,
473
00:22:42.420 --> 00:22:44.490
but that's a vast difference.
474
00:22:44.490 --> 00:22:45.323
And-
475
00:22:45.323 --> 00:22:47.010
But, you're satisfied
476
00:22:47.010 --> 00:22:49.200
that they will do the right thing?
477
00:22:49.200 --> 00:22:50.100
Absolutely.
478
00:22:50.100 --> 00:22:53.490
Absolutely satisfied because I would make the same,
479
00:22:53.490 --> 00:22:55.200
I would go to Pennsylvania
480
00:22:55.200 --> 00:22:57.000
and make the same argument to them
481
00:22:57.000 --> 00:22:59.790
that I'm making to this court today,
482
00:22:59.790 --> 00:23:04.790
which is the ICPC has a very legitimate purpose
483
00:23:05.310 --> 00:23:06.960
as it was intended,
484
00:23:06.960 --> 00:23:11.130
which is to govern agency placements across state lines
485
00:23:11.130 --> 00:23:15.930
so that we don't have unfortunate circumstances.
486
00:23:15.930 --> 00:23:18.730
But didn't Pennsylvania make a mistake the first time?
487
00:23:19.650 --> 00:23:20.977
Didn't they make a mistake by saying,
488
00:23:20.977 --> 00:23:23.610
"Well, this law applies."
489
00:23:23.610 --> 00:23:25.980
So, you know, maybe not,
490
00:23:25.980 --> 00:23:30.980
except that one of the frustrating attendance
491
00:23:32.850 --> 00:23:36.130
to the Interstate Compact and Placement of Children is that
492
00:23:38.640 --> 00:23:39.780
it is a compact.
493
00:23:39.780 --> 00:23:44.040
So a majority of states need to ratify any changes
494
00:23:44.040 --> 00:23:44.873
to the compact.
495
00:23:44.873 --> 00:23:48.240
Right now, the most current version of the ICPC
496
00:23:48.240 --> 00:23:53.040
provides for an appeal of adverse home study decisions,
497
00:23:53.040 --> 00:23:56.710
but I think 35 or 36 states have to join
498
00:23:57.780 --> 00:24:01.800
onto the new iteration of the ICPC in order
499
00:24:01.800 --> 00:24:04.290
for that to take effect nationally.
500
00:24:04.290 --> 00:24:06.090
And it hasn't yet.
501
00:24:06.090 --> 00:24:10.380
So, you know, to make things even more arbitrary,
502
00:24:10.380 --> 00:24:13.080
had that been the issue, we probably could have gone
503
00:24:13.080 --> 00:24:14.520
to Pennsylvania and said, "You know what,
504
00:24:14.520 --> 00:24:16.020
you guys are missing the boat here."
505
00:24:16.020 --> 00:24:18.210
This mother, this Mrs. M,
506
00:24:18.210 --> 00:24:21.360
is a 20 year DCF social worker, Mr. M-
507
00:24:21.360 --> 00:24:22.380
But aren't they missing the boat
508
00:24:22.380 --> 00:24:24.420
because they read the statute wrong?
509
00:24:24.420 --> 00:24:26.970
No, because what Pennsylvania,
510
00:24:26.970 --> 00:24:28.950
Pennsylvania did what they were asked to do.
511
00:24:28.950 --> 00:24:31.821
They did an adoption home study.
512
00:24:31.821 --> 00:24:33.360
[Justice Wendlandt] Right so the initial application
513
00:24:33.360 --> 00:24:34.620
was for adoption, right?
514
00:24:34.620 --> 00:24:35.654
Only application-
515
00:24:35.654 --> 00:24:36.898
[Justice Wolohojian] That's the reason it changed.
516
00:24:36.898 --> 00:24:38.760
[Justice Wendlandt] And Pennsylvania said, "No way."
517
00:24:38.760 --> 00:24:39.907
Right
518
00:24:39.907 --> 00:24:42.120
[Justice Wendlandt] And so the pivot was to guardianship.
519
00:24:42.120 --> 00:24:42.990
Exactly.
Right.
520
00:24:42.990 --> 00:24:46.650
Because we have two children who have one shot
521
00:24:46.650 --> 00:24:48.510
at being placed together with family
522
00:24:48.510 --> 00:24:51.240
and this family by all accounts,
523
00:24:51.240 --> 00:24:53.280
and by this very voluminous
524
00:24:53.280 --> 00:24:57.540
and very thorough home study report is wonderful.
525
00:24:57.540 --> 00:25:02.540
I think to penalize Mr. M for doing what we hope
526
00:25:02.820 --> 00:25:04.920
all criminal defendants do,
527
00:25:04.920 --> 00:25:07.980
which is, you do something bad, you get caught,
528
00:25:07.980 --> 00:25:09.840
you go to jail, and you realize I never wanna
529
00:25:09.840 --> 00:25:12.180
be here ever again and you turn your life around
530
00:25:12.180 --> 00:25:14.640
and that's exactly what this man has done.
531
00:25:14.640 --> 00:25:17.370
And I think to continue
532
00:25:17.370 --> 00:25:21.060
to look at this 26-year-old criminal charge
533
00:25:21.060 --> 00:25:25.110
as being dispositive of his ability today to care
534
00:25:25.110 --> 00:25:26.580
for children when he has two children,
535
00:25:26.580 --> 00:25:29.700
biological children of his own and has never had any-
536
00:25:29.700 --> 00:25:31.308
You're preaching to the choir here.
537
00:25:31.308 --> 00:25:32.203
Yeah, okay.
Mm hmm.
538
00:25:32.203 --> 00:25:33.036
Thank you.
I hope so.
539
00:25:33.036 --> 00:25:35.711
Thank you.
540
00:25:35.711 --> 00:25:37.205
Thank you, Your Honors.
541
00:25:37.205 --> 00:25:38.753
[Justice Wendlandt] Okay, Attorney Koral.
542
00:25:49.894 --> 00:25:50.727
Good morning.
543
00:25:50.727 --> 00:25:51.990
May it please the court, I'm Tracy Koral
544
00:25:51.990 --> 00:25:54.190
for the Department of Children and Families.
545
00:25:55.590 --> 00:25:58.590
I'm here to ask that this court
546
00:25:58.590 --> 00:26:02.163
affirm the lower court's decision to deny the guardianships.
547
00:26:03.090 --> 00:26:06.330
The lower court did not abuse its discretion in finding
548
00:26:06.330 --> 00:26:10.140
that the guardianships would be a violation
549
00:26:10.140 --> 00:26:14.010
of the ICPC where Pennsylvania had previously
550
00:26:14.010 --> 00:26:16.830
denied this proposed guardian-
551
00:26:16.830 --> 00:26:19.560
If, may I ask you a question?
552
00:26:19.560 --> 00:26:21.870
In some sense, the case feels
553
00:26:21.870 --> 00:26:24.063
to me like a question about timing,
554
00:26:25.620 --> 00:26:29.040
so I'm wondering if you could help me with that.
555
00:26:29.040 --> 00:26:33.210
If the guardianship had been teed up
556
00:26:33.210 --> 00:26:36.243
before the question of an adoption,
557
00:26:38.515 --> 00:26:41.070
how would that have played out?
558
00:26:41.070 --> 00:26:45.053
In other words, let's say that the couple
559
00:26:46.170 --> 00:26:48.810
in Pennsylvania had stepped forward
560
00:26:48.810 --> 00:26:51.870
before DCF came forward with a plan for adoption
561
00:26:51.870 --> 00:26:54.330
and they just came forward and said,
562
00:26:54.330 --> 00:26:56.163
filed a petition for guardianship.
563
00:26:57.960 --> 00:27:00.060
What would the judge then have done
564
00:27:00.060 --> 00:27:03.390
and how would the ICPC have factored into that?
565
00:27:03.390 --> 00:27:08.390
Would Pennsylvania's view have been solicited?
566
00:27:09.750 --> 00:27:11.970
On what basis would it have been solicited?
567
00:27:11.970 --> 00:27:15.871
You know, can you just work that all through for me please?
568
00:27:15.871 --> 00:27:17.010
Sure.
569
00:27:17.010 --> 00:27:21.300
Your Honor, first I would tell you that the juvenile court
570
00:27:21.300 --> 00:27:24.930
is a sending agency under the ICPC.
571
00:27:24.930 --> 00:27:27.000
It is on the same footing
572
00:27:27.000 --> 00:27:29.850
as the Department of Children and Families is
573
00:27:29.850 --> 00:27:33.000
and as it pertains to the ICPC.
574
00:27:33.000 --> 00:27:34.320
This is extremely unusual.
575
00:27:34.320 --> 00:27:37.500
As you know, juvenile courts don't typically go
576
00:27:37.500 --> 00:27:38.910
and take children and put them in their car
577
00:27:38.910 --> 00:27:40.590
and place them in foster care.
578
00:27:40.590 --> 00:27:42.000
So you really have to look at it
579
00:27:42.000 --> 00:27:45.440
and ask yourself why under the ICPC
580
00:27:45.440 --> 00:27:48.900
is the court a sending agency.
581
00:27:48.900 --> 00:27:52.080
And that gets down to the intention.
582
00:27:52.080 --> 00:27:54.360
The intention of the ICPC is to make sure
583
00:27:54.360 --> 00:27:56.880
that children crossing state lines
584
00:27:56.880 --> 00:28:00.060
remain in the jurisdiction of an entity.
585
00:28:00.060 --> 00:28:03.150
That somebody is responsible for their safety,
586
00:28:03.150 --> 00:28:06.960
for service provisions, for making sure
587
00:28:06.960 --> 00:28:09.960
that somebody is keeping an eye on these children.
588
00:28:09.960 --> 00:28:11.054
And-
589
00:28:11.054 --> 00:28:11.887
[Justice Wolohojian] So what would've been this,
590
00:28:11.887 --> 00:28:14.901
I'm just trying to get a mechanical answer here.
591
00:28:14.901 --> 00:28:15.734
Sorry.
592
00:28:15.734 --> 00:28:18.240
They filed a petition for, let's assume they filed
593
00:28:18.240 --> 00:28:22.710
a guardianship petition, the judge would've then held.
594
00:28:22.710 --> 00:28:23.543
Yes.
595
00:28:23.543 --> 00:28:24.376
Who would've appeared?
596
00:28:24.376 --> 00:28:27.510
Judge would've then held an evidentiary hearing
597
00:28:27.510 --> 00:28:28.770
or perhaps even trial.
598
00:28:28.770 --> 00:28:30.000
I've seen trials, right?
599
00:28:30.000 --> 00:28:31.680
So-
Yup.
600
00:28:31.680 --> 00:28:34.620
Would Pennsylvania's view have been solicited
601
00:28:34.620 --> 00:28:36.690
and on what basis?
602
00:28:36.690 --> 00:28:39.090
The court would've had to solicit Pennsylvania's view,
603
00:28:39.090 --> 00:28:39.923
Your Honor.
604
00:28:41.520 --> 00:28:43.020
What would've happened is,
605
00:28:43.020 --> 00:28:45.390
and I would direct Your Honors back to the fact
606
00:28:45.390 --> 00:28:47.850
that these children are in the permanent custody
607
00:28:47.850 --> 00:28:50.160
of the Department of Children and Families.
608
00:28:50.160 --> 00:28:51.960
They are under the court's supervision
609
00:28:51.960 --> 00:28:56.763
for an abuse and neglect case.
610
00:28:58.150 --> 00:29:00.930
Their parents' rights have been terminated.
611
00:29:00.930 --> 00:29:04.290
And so, when you look at Regulation 2
612
00:29:04.290 --> 00:29:08.370
of promulgated by the administrators of the ICPC,
613
00:29:08.370 --> 00:29:11.373
and you look at subsection, let me see.
614
00:29:16.170 --> 00:29:17.003
Wrong page.
615
00:29:20.970 --> 00:29:24.860
I believe it is Regulation 2,
616
00:29:25.920 --> 00:29:27.147
Subsection 2
617
00:29:31.350 --> 00:29:34.860
and it talks about different placement categories.
618
00:29:34.860 --> 00:29:38.130
And then it goes on to, in Subsection 4,
619
00:29:38.130 --> 00:29:41.310
to talk about court jurisdiction cases.
620
00:29:41.310 --> 00:29:42.780
And it specifically states
621
00:29:42.780 --> 00:29:46.560
that cases within the jurisdiction of a court
622
00:29:46.560 --> 00:29:49.470
for abuse and neglect or what they characterize
623
00:29:49.470 --> 00:29:50.760
as dependency proceedings.
624
00:29:50.760 --> 00:29:52.883
That's a Mass regulation or is that?
625
00:29:52.883 --> 00:29:55.230
That is the regulation under,
626
00:29:55.230 --> 00:29:57.720
that are promulgated by the AAICPC
627
00:29:57.720 --> 00:29:58.770
Okay.
628
00:29:58.770 --> 00:30:00.390
So, that's a national regulation.
629
00:30:00.390 --> 00:30:01.274
It's not-
630
00:30:01.274 --> 00:30:02.107
That is a national regulation.
631
00:30:02.107 --> 00:30:04.050
But I would also direct Your Honor to-
632
00:30:04.050 --> 00:30:06.660
And it says that they need to consult
633
00:30:06.660 --> 00:30:10.170
with the receiving state in a guardianship situation?
634
00:30:10.170 --> 00:30:11.980
What it says is that
635
00:30:13.800 --> 00:30:17.470
when there is an open abuse and neglect proceeding
636
00:30:18.330 --> 00:30:21.540
under the jurisdiction of a court,
637
00:30:21.540 --> 00:30:26.010
that that is subject to the ICPC.
638
00:30:26.010 --> 00:30:30.090
Okay so, I guess what I hear you saying is
639
00:30:30.090 --> 00:30:33.903
if there were, if the children were not in DCF custody,
640
00:30:35.310 --> 00:30:40.212
but these were just children who, for whatever reason,
641
00:30:40.212 --> 00:30:41.640
needed guardians
642
00:30:41.640 --> 00:30:44.430
and two guardians came forward from Pennsylvania
643
00:30:44.430 --> 00:30:46.230
who were perfectly suitable
644
00:30:46.230 --> 00:30:48.330
and filed a guardianship petition,
645
00:30:48.330 --> 00:30:52.150
in those circumstances, the judge would not need to
646
00:30:54.000 --> 00:30:57.123
follow the ICPC or consult with Pennsylvania.
647
00:31:00.030 --> 00:31:02.190
I hate to give you an it depends answer,
648
00:31:02.190 --> 00:31:03.273
but I'm going to.
649
00:31:04.890 --> 00:31:07.990
If the family members or
650
00:31:09.570 --> 00:31:13.590
if whoever has custody of those children
651
00:31:13.590 --> 00:31:15.690
prior to the allowance of the guardianship
652
00:31:17.190 --> 00:31:21.060
falls within a subset of family members such as parents
653
00:31:21.060 --> 00:31:23.310
and close family members, grandparents,
654
00:31:23.310 --> 00:31:25.410
adult brothers, sisters, uncles,
655
00:31:25.410 --> 00:31:28.320
I would say that they would not need to go
656
00:31:28.320 --> 00:31:29.622
through the ICPC.
657
00:31:29.622 --> 00:31:30.589
Okay.
And that's Article 8.
658
00:31:30.589 --> 00:31:32.070
So it's really,
659
00:31:32.070 --> 00:31:37.070
so it's the fact that the children are in DCF custody.
660
00:31:37.710 --> 00:31:40.080
I think in this particular case,
661
00:31:40.080 --> 00:31:43.410
and I don't wanna speak because the ICPC is very broad,
662
00:31:43.410 --> 00:31:46.080
but in this particular case, yes,
663
00:31:46.080 --> 00:31:47.850
the children are under the supervision
664
00:31:47.850 --> 00:31:48.960
of the juvenile court.
665
00:31:48.960 --> 00:31:51.060
The juvenile court is the sending agency
666
00:31:51.060 --> 00:31:53.310
and this meets the intention of the ICPC,
667
00:31:53.310 --> 00:31:57.150
which is to protect children who are subject of abuse
668
00:31:57.150 --> 00:31:58.860
and neglect proceedings.
669
00:31:58.860 --> 00:32:02.580
Now, do you agree that there was no mechanism?
670
00:32:02.580 --> 00:32:05.820
It's one of the mechanisms I found myself wondering about.
671
00:32:05.820 --> 00:32:09.570
And again, I do not remember where this piece
672
00:32:09.570 --> 00:32:12.510
of random information came into my head from,
673
00:32:12.510 --> 00:32:16.590
but I remember that there's some mechanism
674
00:32:16.590 --> 00:32:21.390
for the judge in Massachusetts to reach out
675
00:32:21.390 --> 00:32:24.870
to a judge in a foreign jurisdiction to ask for
676
00:32:24.870 --> 00:32:27.150
that foreign jurisdiction's aide
677
00:32:27.150 --> 00:32:30.453
in a child placement situation.
678
00:32:31.560 --> 00:32:33.993
Could the judge have,
679
00:32:34.920 --> 00:32:39.920
is there any mechanism by which the judge in Massachusetts
680
00:32:40.320 --> 00:32:43.790
could have asked for merits based evaluation
681
00:32:43.790 --> 00:32:46.500
of this couple by Pennsylvania?
682
00:32:46.500 --> 00:32:47.333
I'm sorry.
683
00:32:47.333 --> 00:32:49.323
I didn't hear what you said before evaluation.
684
00:32:50.310 --> 00:32:53.160
Is there a merits based evaluation?
685
00:32:53.160 --> 00:32:54.720
I don't know what that means.
686
00:32:54.720 --> 00:32:57.420
In other words, their suitability as guardians,
687
00:32:57.420 --> 00:32:59.550
not just based,
688
00:32:59.550 --> 00:33:02.130
based on a multi-factor assessment,
689
00:33:02.130 --> 00:33:05.400
not just he came up with a criminal history.
690
00:33:05.400 --> 00:33:06.233
Right.
691
00:33:07.350 --> 00:33:10.260
Well, Your Honor, I believe that is
692
00:33:10.260 --> 00:33:13.350
what happened with the home study that was presented
693
00:33:13.350 --> 00:33:14.973
to the court by the children.
694
00:33:16.693 --> 00:33:20.580
I believe that the mechanism for that would be
695
00:33:20.580 --> 00:33:23.340
because the juvenile court's the sending agency,
696
00:33:23.340 --> 00:33:26.880
they would have to contact the administrator
697
00:33:26.880 --> 00:33:28.410
of the compact for Pennsylvania
698
00:33:28.410 --> 00:33:31.140
and request a home study through Pennsylvania.
699
00:33:31.140 --> 00:33:32.400
And that's how that would happen.
700
00:33:32.400 --> 00:33:33.557
All right.
701
00:33:33.557 --> 00:33:35.940
So if we were all to agree, and I'm just assuming
702
00:33:35.940 --> 00:33:38.100
because DCF doesn't contest this,
703
00:33:38.100 --> 00:33:39.570
that we all agree that
704
00:33:39.570 --> 00:33:44.570
this couple is a good placement.
705
00:33:45.600 --> 00:33:46.433
Yes.
706
00:33:46.433 --> 00:33:49.770
Is there a way that this case could be remanded
707
00:33:49.770 --> 00:33:54.770
to ask the judge to make that request?
708
00:33:54.953 --> 00:33:58.020
Where we would land, unfortunately, Your Honor,
709
00:33:58.020 --> 00:34:00.930
is if this case was remanded in the court,
710
00:34:00.930 --> 00:34:03.060
made a request for an interstate home study
711
00:34:03.060 --> 00:34:06.750
through the administrator of the Pennsylvania compact,
712
00:34:06.750 --> 00:34:10.740
the same problem would arise,
713
00:34:10.740 --> 00:34:13.740
that this gentleman's quarry,
714
00:34:13.740 --> 00:34:18.187
or criminal record would bar him from-
715
00:34:18.187 --> 00:34:19.320
[Justice Wendlandt] Because that's just
716
00:34:19.320 --> 00:34:20.490
Pennsylvania's rule.
717
00:34:20.490 --> 00:34:21.323
That's Pennsylvania.
718
00:34:21.323 --> 00:34:22.437
It's a statute in Pennsylvania.
719
00:34:22.437 --> 00:34:24.705
Right, so regardless of whether you phone a friend in-
720
00:34:24.705 --> 00:34:25.538
Right.
721
00:34:25.538 --> 00:34:30.000
In Pennsylvania or not, the rule would be binding
722
00:34:30.000 --> 00:34:33.300
on that entity as well, that judge as well
723
00:34:33.300 --> 00:34:37.350
because Pennsylvania, just as a matter of its own policy,
724
00:34:37.350 --> 00:34:40.050
has said regardless of how great you are
725
00:34:40.050 --> 00:34:41.490
and how much you've been redeemed,
726
00:34:41.490 --> 00:34:44.190
and I agree that this is,
727
00:34:44.190 --> 00:34:47.010
it does appear that this would be a perfect place placement
728
00:34:47.010 --> 00:34:50.700
for the kids, but Pennsylvania's rule is no.
729
00:34:50.700 --> 00:34:51.776
Correct.
730
00:34:51.776 --> 00:34:52.609
That's correct.
731
00:34:52.609 --> 00:34:54.860
So now can I ask you about the plain language then
732
00:34:54.860 --> 00:34:57.870
of the statute at issue here?
733
00:34:57.870 --> 00:35:00.930
It doesn't actually say guardianship
734
00:35:00.930 --> 00:35:03.390
and it doesn't just say placements.
735
00:35:03.390 --> 00:35:08.103
It talks about foster care and adoption, in particular.
736
00:35:10.080 --> 00:35:12.363
Why expand it then?
737
00:35:13.770 --> 00:35:16.462
I don't believe it's expanding it, Your Honor.
738
00:35:16.462 --> 00:35:18.360
[Justice Wendlandt] What's your statutory language
739
00:35:18.360 --> 00:35:20.370
basis for that?
740
00:35:20.370 --> 00:35:24.300
Well, first of all, I'm going to refer you to the article
741
00:35:24.300 --> 00:35:26.940
to definition of placement, which is quite broad.
742
00:35:26.940 --> 00:35:28.683
It's just care with family.
743
00:35:31.230 --> 00:35:35.070
So then you go over to Article 3
744
00:35:35.070 --> 00:35:37.750
and you look at the provisions of Article 3
745
00:35:38.850 --> 00:35:42.360
and there is reference in the provisions of Article 3
746
00:35:42.360 --> 00:35:46.882
to placement and I know it does say in foster care
747
00:35:46.882 --> 00:35:49.080
or is preliminary to adoption.
748
00:35:49.080 --> 00:35:51.570
But what you have to remember about the ICPC
749
00:35:51.570 --> 00:35:55.300
is that this is a statute that addresses
750
00:35:56.160 --> 00:35:58.770
50 plus jurisdictions.
751
00:35:58.770 --> 00:36:02.100
And so, the language
752
00:36:02.100 --> 00:36:04.020
has to be construed very broadly.
753
00:36:04.020 --> 00:36:06.270
And I believe Article 7,
754
00:36:06.270 --> 00:36:08.010
it says something to the effect of,
755
00:36:08.010 --> 00:36:08.880
construing it broad,
756
00:36:08.880 --> 00:36:10.800
or actually it might be Article 10.
757
00:36:10.800 --> 00:36:11.973
Don't quote me on that.
758
00:36:13.260 --> 00:36:18.260
But when you look down at Subsection D of Article 3,
759
00:36:19.590 --> 00:36:23.220
it says, "A child shall not be sent, brought,
760
00:36:23.220 --> 00:36:26.160
or caused to be sent or brought into a receiving state
761
00:36:26.160 --> 00:36:29.070
until the appropriate public authorities
762
00:36:29.070 --> 00:36:32.910
in the receiving state shall notify the sending agency
763
00:36:32.910 --> 00:36:36.000
in writing that the placement is not contrary
764
00:36:36.000 --> 00:36:37.740
to the interest of the child."
765
00:36:37.740 --> 00:36:41.490
So I think that gets you where you need to be right there.
766
00:36:41.490 --> 00:36:42.464
Where is that provision,
767
00:36:42.464 --> 00:36:44.088
that's what provision you're reading from?
768
00:36:44.088 --> 00:36:44.921
Article 3.
Subsection D.
769
00:36:44.921 --> 00:36:48.333
That would be under Article 3, Subsection D.
770
00:36:49.560 --> 00:36:51.240
And I also wanna point you
771
00:36:51.240 --> 00:36:56.240
to the definitions section
772
00:36:56.490 --> 00:37:00.360
of the administrators of the ICPC.
773
00:37:00.360 --> 00:37:04.500
They have a definition section of their regulations.
774
00:37:04.500 --> 00:37:09.333
And, in Regulation number 2,
775
00:37:12.450 --> 00:37:13.980
let me see.
776
00:37:13.980 --> 00:37:18.330
Regulation number 2, they have a number,
777
00:37:18.330 --> 00:37:19.173
I'm sorry.
778
00:37:21.540 --> 00:37:23.523
There are a lot of regulations here.
779
00:37:32.901 --> 00:37:37.901
In their definition section, they define foster care.
780
00:37:39.300 --> 00:37:42.120
And foster care is also defined broadly
781
00:37:42.120 --> 00:37:45.270
under the regulations of the AAICPC.
782
00:37:45.270 --> 00:37:48.300
And that definition, Your Honors,
783
00:37:48.300 --> 00:37:49.773
says that it is,
784
00:37:51.570 --> 00:37:55.050
a foster placement is essentially substitute care
785
00:37:55.050 --> 00:38:00.050
and licensure and payment are not condition precedent
786
00:38:00.420 --> 00:38:01.890
to it being a foster home.
787
00:38:01.890 --> 00:38:03.900
So they're not looking at foster care
788
00:38:03.900 --> 00:38:05.214
in the traditional sense.
789
00:38:05.214 --> 00:38:07.230
Right because guardianship is a concept
790
00:38:07.230 --> 00:38:09.990
that's gotta be applied in all 50 states, right?
791
00:38:09.990 --> 00:38:11.340
And-
I agree with you.
792
00:38:11.340 --> 00:38:12.670
And words that are lettered with.
793
00:38:12.670 --> 00:38:15.660
And I do believe that a guardianship is,
794
00:38:15.660 --> 00:38:18.900
well, at first I think that Article 8
795
00:38:18.900 --> 00:38:21.720
deals directly with guardianships, correct?
796
00:38:21.720 --> 00:38:24.840
In that it specifies that you have a number
797
00:38:24.840 --> 00:38:27.900
of close relatives and guardians
798
00:38:27.900 --> 00:38:31.263
who can make placements without complying with the ICPC.
799
00:38:32.559 --> 00:38:33.510
And these people don't meet
800
00:38:33.510 --> 00:38:34.343
that definition?
801
00:38:34.343 --> 00:38:36.030
Great aunt and uncle is not?
802
00:38:36.030 --> 00:38:38.100
No, they do not meet that definition.
803
00:38:38.100 --> 00:38:39.630
And I would add that under-
804
00:38:39.630 --> 00:38:42.750
That apply even if the child were in DCF custody
805
00:38:42.750 --> 00:38:44.670
or it only applies when it's a transfer
806
00:38:44.670 --> 00:38:47.070
from one family member to another?
807
00:38:47.070 --> 00:38:48.630
It only applies when it's a transfer
808
00:38:48.630 --> 00:38:51.150
from one family member to another.
809
00:38:51.150 --> 00:38:53.220
So is is the,
810
00:38:53.220 --> 00:38:56.070
everyone's heartstrings are legitimately pulled here,
811
00:38:56.070 --> 00:38:58.410
but is this fixable in Pennsylvania?
812
00:38:58.410 --> 00:39:01.350
I mean, we're doing back flips and-
813
00:39:01.350 --> 00:39:03.473
I know.
Triple jumps and-
814
00:39:03.473 --> 00:39:04.306
I know.
815
00:39:04.306 --> 00:39:06.570
And is this something that is clearly you bring
816
00:39:06.570 --> 00:39:08.670
to Pennsylvania and say, you didn't really mean this
817
00:39:08.670 --> 00:39:11.280
or you did mean it and it's unconstitutional.
818
00:39:11.280 --> 00:39:13.710
I mean, are we the wrong forum for this?
819
00:39:13.710 --> 00:39:17.043
I can tell you,
820
00:39:18.960 --> 00:39:20.400
I agree with counsel.
821
00:39:20.400 --> 00:39:21.840
I don't see any ready way
822
00:39:21.840 --> 00:39:24.360
to appeal this decision administratively.
823
00:39:24.360 --> 00:39:25.410
In Pennsylvania?
824
00:39:25.410 --> 00:39:27.240
In Pennsylvania and there is not,
825
00:39:27.240 --> 00:39:28.577
from what I could tell in my research.
826
00:39:28.577 --> 00:39:30.120
Pennsylvania doesn't have a statutory equivalent
827
00:39:30.120 --> 00:39:32.460
that says if there's no other remedy,
828
00:39:32.460 --> 00:39:34.110
you can't do blankety blank?
829
00:39:34.110 --> 00:39:35.700
I mean, seems,
830
00:39:35.700 --> 00:39:38.280
it's hard to imagine there's something unconstitutional
831
00:39:38.280 --> 00:39:39.600
that can't be challenged.
832
00:39:39.600 --> 00:39:40.920
Well, I can tell you,
833
00:39:40.920 --> 00:39:43.800
and when I was doing my research for this brief,
834
00:39:43.800 --> 00:39:45.660
that I did see cases
835
00:39:45.660 --> 00:39:50.660
where school employees challenge this particular statute
836
00:39:50.760 --> 00:39:52.020
as unconstitutional.
837
00:39:52.020 --> 00:39:57.020
So there is a chain of case law related to educators,
838
00:39:57.030 --> 00:40:00.570
but I did not find anything in the case law
839
00:40:00.570 --> 00:40:02.760
related to foster parents
840
00:40:02.760 --> 00:40:06.240
and whether this statute is unconstitutional
841
00:40:06.240 --> 00:40:07.770
as it would apply to foster parents,
842
00:40:07.770 --> 00:40:09.660
especially kinship foster care.
843
00:40:09.660 --> 00:40:10.860
Counsel, before we lose you,
844
00:40:10.860 --> 00:40:14.130
can you just address the issue of the great aunt
845
00:40:14.130 --> 00:40:17.100
and the great uncle not being part of these proceedings?
846
00:40:17.100 --> 00:40:19.320
Yes, I was gonna address that.
847
00:40:19.320 --> 00:40:20.283
I got sidetracked.
848
00:40:21.450 --> 00:40:23.643
I think Tara is directly on point.
849
00:40:24.783 --> 00:40:26.340
[Justice Wendlandt] Well except Tara, we had no statement
850
00:40:26.340 --> 00:40:28.800
of interest or continued interest.
851
00:40:28.800 --> 00:40:29.633
Correct.
852
00:40:29.633 --> 00:40:31.150
We did not but-
853
00:40:31.150 --> 00:40:31.983
[Justice Wendlandt] But here we know
854
00:40:31.983 --> 00:40:35.310
that the guardians are still interested in being guardians.
855
00:40:35.310 --> 00:40:36.433
And that is true but-
856
00:40:36.433 --> 00:40:38.280
So we don't have the problem in Tara
857
00:40:38.280 --> 00:40:41.820
where the appeals court just didn't know.
858
00:40:41.820 --> 00:40:45.360
If the guardians had said, you know, "Well we tried.
859
00:40:45.360 --> 00:40:48.614
We're no longer interested, we're gonna go home."
860
00:40:48.614 --> 00:40:50.850
And that's a fair point, Your Honor,
861
00:40:50.850 --> 00:40:53.760
but I would just point you to the other part
862
00:40:53.760 --> 00:40:57.213
of the department's brief where there's discussion about,
863
00:40:58.050 --> 00:41:00.750
because ultimately Pennsylvania deems whether
864
00:41:00.750 --> 00:41:03.180
or not this is a violation of the ICPC
865
00:41:03.180 --> 00:41:05.520
and if these children require services
866
00:41:05.520 --> 00:41:08.703
and they're in Pennsylvania in the future.
867
00:41:10.560 --> 00:41:12.300
And I think given the history
868
00:41:12.300 --> 00:41:13.890
and the factual history of this case,
869
00:41:13.890 --> 00:41:15.930
it's likely that they'll need services.
870
00:41:15.930 --> 00:41:18.150
Pennsylvania can deny them services if they feel
871
00:41:18.150 --> 00:41:20.490
this was a violation of the ICPC.
872
00:41:20.490 --> 00:41:23.070
So really the question for the guardians
873
00:41:23.070 --> 00:41:26.670
is if they deem this a violation of the ICPC,
874
00:41:26.670 --> 00:41:28.920
can we assure that these children
875
00:41:28.920 --> 00:41:30.510
will have services going forward?
876
00:41:30.510 --> 00:41:33.720
Do you have the financial resources
877
00:41:33.720 --> 00:41:36.420
to provide services going forward?
878
00:41:36.420 --> 00:41:37.800
Now I'm not advocating that
879
00:41:37.800 --> 00:41:39.420
that's the direction the court should go.
880
00:41:39.420 --> 00:41:41.997
I think firmly this is a violation of the ICPC
881
00:41:41.997 --> 00:41:44.100
and that the court was correct.
882
00:41:44.100 --> 00:41:48.060
But if that is a direction you were going to look at,
883
00:41:48.060 --> 00:41:50.490
the problem here is that the guardians are not here
884
00:41:50.490 --> 00:41:52.320
to answer questions about that.
885
00:41:52.320 --> 00:41:56.169
And I think in this case, they really do need to be here.
886
00:41:56.169 --> 00:41:59.340
Rules 3 and 4 and juvenile court Rule 20,
887
00:41:59.340 --> 00:42:03.510
there's a reason why we look for formal notice
888
00:42:03.510 --> 00:42:07.290
of appeals and that parties need to be here at court.
889
00:42:07.290 --> 00:42:09.210
And that's to answer those kinds of questions.
890
00:42:09.210 --> 00:42:10.083
They're not here.
891
00:42:11.430 --> 00:42:16.410
So I would say that Tara is specifically on point
892
00:42:16.410 --> 00:42:19.740
and they're necessary parties as I just explained,
893
00:42:19.740 --> 00:42:21.663
and that this should not that-
894
00:42:22.742 --> 00:42:24.990
[Justice Wolohojian] So if we ruled on that basis,
895
00:42:24.990 --> 00:42:27.810
we would dismiss the appeal, I take it.
896
00:42:27.810 --> 00:42:28.643
Yes.
897
00:42:28.643 --> 00:42:30.460
And would that preclude
898
00:42:31.890 --> 00:42:36.890
a whole reinitiation of similar guardianship petition?
899
00:42:37.380 --> 00:42:41.100
What if they filed a guardianship petition in Pennsylvania?
900
00:42:41.100 --> 00:42:43.620
Well, the problem with that is that the department
901
00:42:43.620 --> 00:42:45.630
is the custodian at this time
902
00:42:45.630 --> 00:42:49.500
under Chapter 119, Section 26.
903
00:42:49.500 --> 00:42:52.170
The department has permanent custody of those children.
904
00:42:52.170 --> 00:42:53.003
So we would have to-
905
00:42:53.003 --> 00:42:55.080
So they would have to file the petition here?
906
00:42:55.080 --> 00:42:56.700
Yes, yes.
907
00:42:56.700 --> 00:42:58.550
They have to file that petition here.
908
00:42:59.460 --> 00:43:02.460
But would our dismissal of this appeal,
909
00:43:02.460 --> 00:43:05.110
because they weren't present, preclude them refiling?
910
00:43:08.700 --> 00:43:11.700
I didn't see anything in the docket that indicated
911
00:43:11.700 --> 00:43:14.130
to me that the petition had been denied
912
00:43:14.130 --> 00:43:17.250
without prejudice or with prejudice.
913
00:43:17.250 --> 00:43:19.440
I think that would be something that would have to go back
914
00:43:19.440 --> 00:43:21.870
to the juvenile court judge
915
00:43:21.870 --> 00:43:25.260
and be argued at the juvenile court level.
916
00:43:25.260 --> 00:43:26.093
But we might end up
917
00:43:26.093 --> 00:43:28.667
in the same situation and keep doing this dosey doe.
918
00:43:28.667 --> 00:43:29.500
[Justice Wolohojian] Yep.
919
00:43:29.500 --> 00:43:32.070
Which is why the department thoroughly
920
00:43:32.070 --> 00:43:35.010
addressed the issue of the ICPC
921
00:43:35.010 --> 00:43:37.890
and its applicability in this case in its brief.
922
00:43:37.890 --> 00:43:41.460
And, I am well over my time at this point.
923
00:43:41.460 --> 00:43:44.640
So I would just say that I'd ask you to affirm the decision
924
00:43:44.640 --> 00:43:48.120
of the lower court and to the extent I didn't get
925
00:43:48.120 --> 00:43:49.590
to discuss all of my points,
926
00:43:49.590 --> 00:43:52.500
I would rest on my brief going forward and I thank you
927
00:43:52.500 --> 00:43:54.023
for your time today.
Okay.