-: SJC-13668
in the matter of an impounded case.
-: We're gonna break after this one too?
-: Yeah, yeah, for sure.
(papers shuffling)
-: Okay, Attorney Driscoll-Weiss, whenever you're ready.
-: Thank you Your Honor.
May it please the court,
Roberta Driscoll-Weiss today on behalf
of the appellant children.
With me is Attorney Jamie Wallerstein,
who is trial counsel for the children.
I have two requests of the panel today.
First, I would ask that this court rule
on the application of the Interstate Compact
for the Placement of Children,
which I will be referring to as the ICPC
for the rest of my argument.
We're asking the court to hold that the ICPC
applies when a child is sent across state lines
for the purposes of foster care or adoption,
not as was proposed in this case
for a custodial determination of custody
through a guardianship.
And I think-
-: Can you explain to me
what the status is of the guardians?
As I understand a proposed guardianship,
as I understand it, they are not present
participating in this appeal.
-: The guardians filed a motion to,
for a late notice of appeal to join with-
-: Right. -: Childs-
-: And that was denied without prejudice
and I just don't know if they actually did
file a notice of appeal.
-: They didn't file a notice of appeal, Your Honor,
what they filed was a status report
indicating their continued commitment to these children,
as I noted in my reply brief.
-: But aren't they a necessary party for these proceedings?
Roberta: I think-
-: [Justice Wendlandt] That is what remedy should we order?
-: Right. -: You know?
Assuming we agree with your argument,
we don't have a guardian before us as a matter
of their posture in this case that we,
whose rights are being affected.
-: In their status report, they did indicate
their continued commitment, which I would aver again today.
But, as I pointed it in my reply brief,
this is a matter that is certainly capable of repetition
yet evading review and in fact could be repeated-
-: So we would say this matter,
we can't decide for these particular children
because we need the guardians present in order
to affect their rights but going forward,
FYI, the ICPA doesn't apply or does apply.
Roberta: I would-
-: As sort of a- -: Yeah.
-: [Justice Wendlandt] As a dicta, you know?
-: Because you seem to be melding in a mootness issue,
and that's not really what this issue is.
This really is a question of whether or not,
whatever we do, let's say we agree and you win, right?
We don't have the great aunt and uncle saying,
"Yeah, we would like to do so."
Forget about previous flares,
about they would be willing to do so.
We don't have that here.
-: Then what I would ask this court to do, Your Honor,
would be to remand the matter back to the trial court
for an evidentiary hearing on the suitability
of the proposed guardians.
In essence, to rehear the Petition for Guardianship
in the trial court
with an evidentiary hearing, which was denied.
-: But by not appealing, the guardians
have accepted the finality of that decision.
Roberta: And I think that's my point, Your Honor,
is that I don't think that they did.
I think that-
-: But how do I know that?
Is it just this notice of continuing interest
that you're saying I should read
as effectively an appeal?
-: Yes.
And in fact, Your Honor,
they could simply file another guardianship
and start the whole process again.
When I say this is capable of repetition,
it could be repeated in this exact same case again.
And so I think as a matter of, you know, judicial economy
and as a matter of law going forward,
the ICPC, as we all know, is something that is,
we are being confronted with quite frequently
in recent months and weeks.
And so I would ask the panel
to hear the-
-: You don't represent- -: Argument of the parents.
-: [Justice Wendlandt] You don't represent
the proposed guardians, do you?
-: I do not.
I represent the appellant children.
-: Right.
And I didn't see the status report that you're referring to.
I didn't see it in the record.
Is it in the record?
Roberta: I included it in the addendum
for my reply brief.
-: Okay.
-: I believe it's the last two or three pages.
What we received from the appeals court
was essentially directive pursuant
to guardianship of Tara,
where that in guardianship of Tara,
there was no indication at all
that the guardians had any continued interest
in serving as guardians.
And so, the status report was an attempt
to address the specific directive from the appeals court
about their continued commitment.
Their request to appeal was to simply join child's,
join the brief that I filed on behalf of the children.
-: [Justice Wendlandt] You said the guardians
have joined your brief?
-: No, that was their request when they filed
the motion for a late notice of appeal
was that they just simply be allowed
to join the child's brief,
not to hold up the matter by filing a separate brief.
That was the motion that was denied, Your Honor.
-: Were they represented by counsel in the trial court?
-: They were not.
And they're not represented by counsel now.
And, you know, I apologize if the status report
was inadequate.
I would perhaps-
-: Well, normally you'd need to appeal
a decision below in order to participate,
but I take it that all we have is the status report.
-: And again, Your Honor, they would certainly today
file another guardianship petition in the juvenile court.
-: [Justice Wendlandt] Or a notice of appeal.
Justice Kafker: It might be issue conclusion or,
there may be problems with that.
But, can we get to the merits 'cause-
Justice Georges: Yeah.
-: So, you rely on this law review article,
this Yale Law Review article,
for your substantive position.
Is that a distinct minority position,
both rejected by the feds and the state?
Or is there, I'm just trying to get a sense of,
I understand academics often, you know,
think we're over reading things or under reading things,
but is there,
is this a distinct minority position you're pushing?
-: I don't believe that it is, Your Honor,
I think in my brief I outlined that there are a number
of other jurisdictions that have held
as I would be asking this court to hold
that the terms of the ICP as drafted,
as codified in 119 APP Section 2-1,
very clearly state that the purpose of the ICPC
is first to create uniformity.
-: But, and just to push you a little bit,
are there any cases like this
as opposed to a family type of guardian?
You know, someone gets divorced and they're shifting.
Are there any cases like this where a court
in a DCF type of case has done this kind of thing
and it's found to be permissible?
Because I read through quickly your cases,
at least the parentheticals, they seem all distinguishable.
Are there any cases like this where a court
is assigning out of state and the receiving state
is rejecting it?
Anything like this?
-: The Inray Imani case in New Hampshire,
I believe was a similar state intervention type of matter.
If not, I would be happy to respond by letter.
I apologize.
I can't answer the question at the moment,
but I think what,
just going back to the substantive argument,
there's one reading of the ICPC that both comports
with the language of the statute
and therefore the legislative intent in adopting the statute
and the other relevant statutes
that come into play in these types of-
-: But it's rejected by the regulations, right?
The regulations say the exact opposite.
Roberta: Well-
-: It's a question, not an answer yet.
Is that right?
The regulations reject your interpretation, right?
-: The DCF as the compact administrator
is allowed to promulgate regulations
that aid in the furtherance of the compact itself.
And I argue that their regulations
are overreaching and overbroad,
given what those regulations are intended to do.
They're intended to assist DCF as the compact administrator
in administering the compact.
But the compact as written is very clear
that it refers to placement, not custody.
It doesn't use the word custody.
It uses the word placement
and it applies to placement for the purpose
of foster care or adoption.
And when you look at the other relevant statutes
that are implicated in child welfare cases like 190B,
which is the guardianship statute,
209B, which is the Mass Child Custody Jurisdiction Statute,
there are very clear antagonism.
There's very clear antagonism between them.
For example, Section 5 of the ICPC requires
that the sending agency, in this case, Massachusetts,
would retain jurisdiction over all matters pertaining
to the children,
healthcare, schooling, et cetera.
And if you think of a guardianship case,
the guardianship statute very clearly says
that these are responsibilities
that are given to the guardian.
-: At least for the initial transfer, right?
Guardianship.
In here the guardians,
the grand guardians on all reports, wonderful people
and it'd be a great match.
But if that were not the case,
how does DCF ensure itself
that they're not sending these children
to a bad situation out in another state?
-: So which is, and in my brief,
I argue that the children were denied due process
because there was no evidentiary hearing.
In a guardianship petition, the petition is filed
with notice to the opposite, to the other side,
requesting a full evidentiary hearing,
in which case the home study
from a licensed adoption agency in Pennsylvania,
which was, as you know, glowing
and she went as far as to say,
"I don't ever make recommendations,
but in this case I'm going to,
and I'm gonna recommend these folks as guardians
because they are perfectly appropriate."
This is a matter that should have been tried
before the judge.
The judge should have-
-: It should have been tried in here or in Pennsylvania
'cause seems like your beef is with Pennsylvania
that they're doing something unconstitutional
by depriving these very capable guardians
based on something that happened 17 years ago
but there's gotta be a way of appealing
that in Pennsylvania.
Well, it has to be.
If something's unconstitutional, I mean,
I'm not an expert in Pennsylvania law,
but you're,
it seems like you should be in Pennsylvania, not here.
-: If I could just clarify one point which,
and I think it was not clear to me until,
actually until I read the department's brief,
the statute in Pennsylvania
that the ICPC compact administrator in Pennsylvania
relied on in denying the guardian's home study
is a statute, it is, pardon me,
23 Pennsylvania CS 6344.
And, it applies to employment.
So it's a statute that governs who can be employed
or volunteer with children.
So a Boys & Girls Club
or a daycare center would,
this statute would govern those individuals.
And it applies to foster parents.
It does not apply to guardians.
And yet, the ICPC provides no independent right
of review in Pennsylvania for a family
who's been denied an ICPC home study.
And when you contrast that with Massachusetts,
which for example, the testimony
or the commentary by the DCF attorney
during the hearing was if this was Massachusetts,
we would've waived this criminal record issue.
It was 26 years ago.
-: But how does that not make Justice Kafker's point?
Because what we're looking to here
is what did the trial judge here do wrong?
And if the beef is, we couldn't appeal it
in Pennsylvania.
Pennsylvania, even though you're saying potentially whatever
they use to deny the placement is not applicable
to a home study for a guardianship petition.
That's all Pennsylvania's stuff.
So why is it that the trial judge was wrong here
to say they won't receive it, so I'm dismissing it?
-: Because the ICPC shouldn't apply
in the case of a guardianship.
And, that's why I say when you look at the ICPC
together with other relevant statutes,
119-26 says that after parents are found unfit,
the judge has a list of options available to him or her.
One of those options is to give custody to any person
that's in the best interest of the child.
But here we have the ICPC that says,
"Well, sorry judge, you can't do that."
Because we have this foreign, administrative agency
that has made this anonymous declaration
that these people are not suitable.
Justice Georges: Okay, let me-
-: And there's no right of appeal.
-: Well, let me just press this a little bit.
So you are saying that the regulations
where they say it does subsume guardianship,
even though you're saying that the ICPC does not say that,
that there's this disconnect with how they're looking at it.
Well, if the ICPC calls for adoption
and we agree that it says adoption,
how can a lesser placement not be within,
be subsumed by the ICPC?
Roberta: But I think it could.
I think-
-: Well, the regulations say it could.
-: But I think the difference here
is the manner in which children are placed for adoption.
They're placed by DCF in a home
that has been licensed or is undergoing licensure
for adoption.
It's not the judge that places the children
with those particular individuals.
It's the department.
Guardianship is a different animal altogether
because it's a custodial determination
made by a judge after an evidentiary hearing.
So we're not asking that,
we're not saying that DCF made a mistake here
by not placing the children.
DCF's hands were tied,
but I don't believe the judge's hands were tied
because the guardianship petition was a vehicle
to get these two children, who,
if I could go to the second portion of my argument
is these are two children who are placed separately.
One has a potential adoptive placement
that will not adopt the other.
So the only chance that these two children have
of being raised together and being raised together
with family was this guardianship petition.
-: Well no, there's another chance, which is,
had you brought lawsuit in Pennsylvania and fixed this,
Massachusetts would immediately send the kids there
because Massachusetts is comfortable with this.
But what you're asking us to do
is you're asking Massachusetts
to send these children somewhere where Pennsylvania
said it's not appropriate.
And that's a much more complicated problem than-
-: Respectfully, Your Honor,
and I apologize if that's the impression that I gave,
because that is not, that is absolutely not what I'm asking.
What I'm asking Massachusetts to do
is to look at the four corners of the ICPC
and decide that this is where the ICPC applies
as it is drafted, as it was adopted by the legislature.
And when, if in that circumstance,
what the trial judge found here was these are great people,
love these people, don't have any problem with these people,
but the intent or the spirit of the ICPC is violated here.
And what I'm saying is the spirit of the ICPC doesn't apply
to a guardianship at all.
It's the difference
between an administrative agency placement
and a custodial decision by a judge
and I think to tie the judge's hands by this broad,
expansive and really unsupported reading
of the ICPC is to do the juvenile court a great disservice.
This is, not only is this capable of repetition
in this particular case, but this is a situation
that we face in the juvenile court almost on a daily basis
because of the ICPC.
-: [Justice Wolohojian] May I ask a question?
Was your petition a permanent guardianship,
petition for permanent guardianship?
-: Yes, Your Honor. -: Okay.
And if I recall the rules
for permanent guardianship correctly, which is unlikely.
Roberta: I doubt that very much.
-: There's some continuing reporting requirement
that goes back to the court.
It doesn't ever get transferred to the jurisdiction.
Does it ever get transferred to the jurisdiction
where the children then end up residing
or the guardian resides?
-: It does, and the guardianship statute
provides in section,
hmm.
I wanna say 7.
I could be wrong.
The guardianship statute provides
for guardians to remove children out of state.
That's something that's contemplated within the 209B.
-: [Justice Wolohojian] And once removed,
they start reporting to the local state.
-: And then what would happen is one would take that petition
and register it with the foreign court and-
Justice Georges: Which we can't do here.
-: Which you could do here.
I apologize, but I-
Justice Georges: So you're saying if the guardianship
were approved here.
-: Yes.
-: You're saying that the great aunt and uncle
go back to Pennsylvania
and the reporting requirements of a form that said,
you're disqualified.
-: But again, and I think this is the conundrum
with the ICPC.
They were disqualified to adopt
because Pennsylvania has a statute
that addresses the verification
of employees that work with children,
volunteer with children, foster parents and adopters.
The statute in Pennsylvania does not say guardianship.
And I think it makes,
I'm not standing here to suggest that the ICPC is wrong.
I think we all recognize that there's a need
for DCF when they place a child
in a family in another state,
there is a need for a mechanism to keep eyes on that child
and to be assured that that child is going
to receive necessary services
because that child remains in the custody,
legal custody of DCF.
But in this case, what the judge would've done
had she allowed the guardianship petition,
was to make a custodial determination
and give custody directly to the M family.
And then under the Uniform Child-Custody Jurisdiction Act,
six months in Pennsylvania
would confer home state jurisdiction on Pennsylvania
and any further issues pertaining to the guardianship
could be heard in Pennsylvania.
This is not an attack on the ICPC at all.
This is an effort to
limit its application to the statutory language
so that it does harmonize with these other relevant statutes
that talk about the difference
between a judicial custodial placement
and a, excuse me, I misspoke,
a judicial transfer of custody versus an agency placement.
And I think what happens is we confabulate
these things in the juvenile court,
but we really need to look at them separately.
And when one does that, it becomes clear
that the ICPC is not intended to apply
to all custody determinations made by a judge,
but rather to placement decisions made by the department
or another similar agency.
-: You said that the jurisdiction
would go to Pennsylvania in six months?
Roberta: Under the Uniform Child-Custody
Jurisdiction Act.
-: But I guess my question is just,
are you satisfied that in six months Pennsylvania
would be like, oh, okay, well,
we didn't like this before, but since they're here
and since it's a guardianship and not a custody placement.
-: So again, it's,
but that's a vast difference.
And-
Justice Budd: But, you're satisfied
that they will do the right thing?
-: Absolutely.
Absolutely satisfied because I would make the same,
I would go to Pennsylvania
and make the same argument to them
that I'm making to this court today,
which is the ICPC has a very legitimate purpose
as it was intended,
which is to govern agency placements across state lines
so that we don't have unfortunate circumstances.
-: But didn't Pennsylvania make a mistake the first time?
Didn't they make a mistake by saying,
"Well, this law applies."
-: So, you know, maybe not,
except that one of the frustrating attendance
to the Interstate Compact and Placement of Children is that
it is a compact.
So a majority of states need to ratify any changes
to the compact.
Right now, the most current version of the ICPC
provides for an appeal of adverse home study decisions,
but I think 35 or 36 states have to join
onto the new iteration of the ICPC in order
for that to take effect nationally.
And it hasn't yet.
So, you know, to make things even more arbitrary,
had that been the issue, we probably could have gone
to Pennsylvania and said, "You know what,
you guys are missing the boat here."
This mother, this Mrs. M,
is a 20 year DCF social worker, Mr. M-
Justice Budd: But aren't they missing the boat
because they read the statute wrong?
-: No, because what Pennsylvania,
Pennsylvania did what they were asked to do.
They did an adoption home study.
-: [Justice Wendlandt] Right so the initial application
was for adoption, right?
-: Only application-
-: [Justice Wolohojian] That's the reason it changed.
-: [Justice Wendlandt] And Pennsylvania said, "No way."
-: Right
-: [Justice Wendlandt] And so the pivot was to guardianship.
-: Exactly. -: Right.
-: Because we have two children who have one shot
at being placed together with family
and this family by all accounts,
and by this very voluminous
and very thorough home study report is wonderful.
I think to penalize Mr. M for doing what we hope
all criminal defendants do,
which is, you do something bad, you get caught,
you go to jail, and you realize I never wanna
be here ever again and you turn your life around
and that's exactly what this man has done.
And I think to continue
to look at this 26-year-old criminal charge
as being dispositive of his ability today to care
for children when he has two children,
biological children of his own and has never had any-
Justice Kafker: You're preaching to the choir here.
-: Yeah, okay. -: Mm hmm.
-: Thank you. -: I hope so.
Thank you.
Thank you, Your Honors.
-: [Justice Wendlandt] Okay, Attorney Koral.
-: Good morning.
May it please the court, I'm Tracy Koral
for the Department of Children and Families.
I'm here to ask that this court
affirm the lower court's decision to deny the guardianships.
The lower court did not abuse its discretion in finding
that the guardianships would be a violation
of the ICPC where Pennsylvania had previously
denied this proposed guardian-
-: If, may I ask you a question?
In some sense, the case feels
to me like a question about timing,
so I'm wondering if you could help me with that.
If the guardianship had been teed up
before the question of an adoption,
how would that have played out?
In other words, let's say that the couple
in Pennsylvania had stepped forward
before DCF came forward with a plan for adoption
and they just came forward and said,
filed a petition for guardianship.
What would the judge then have done
and how would the ICPC have factored into that?
Would Pennsylvania's view have been solicited?
On what basis would it have been solicited?
You know, can you just work that all through for me please?
-: Sure.
Your Honor, first I would tell you that the juvenile court
is a sending agency under the ICPC.
It is on the same footing
as the Department of Children and Families is
and as it pertains to the ICPC.
This is extremely unusual.
As you know, juvenile courts don't typically go
and take children and put them in their car
and place them in foster care.
So you really have to look at it
and ask yourself why under the ICPC
is the court a sending agency.
And that gets down to the intention.
The intention of the ICPC is to make sure
that children crossing state lines
remain in the jurisdiction of an entity.
That somebody is responsible for their safety,
for service provisions, for making sure
that somebody is keeping an eye on these children.
And-
-: [Justice Wolohojian] So what would've been this,
I'm just trying to get a mechanical answer here.
-: Sorry.
-: They filed a petition for, let's assume they filed
a guardianship petition, the judge would've then held.
Tracy: Yes.
-: Who would've appeared?
Judge would've then held an evidentiary hearing
or perhaps even trial.
I've seen trials, right?
So- -: Yup.
-: Would Pennsylvania's view have been solicited
and on what basis?
-: The court would've had to solicit Pennsylvania's view,
Your Honor.
What would've happened is,
and I would direct Your Honors back to the fact
that these children are in the permanent custody
of the Department of Children and Families.
They are under the court's supervision
for an abuse and neglect case.
Their parents' rights have been terminated.
And so, when you look at Regulation 2
of promulgated by the administrators of the ICPC,
and you look at subsection, let me see.
Wrong page.
I believe it is Regulation 2,
Subsection 2
and it talks about different placement categories.
And then it goes on to, in Subsection 4,
to talk about court jurisdiction cases.
And it specifically states
that cases within the jurisdiction of a court
for abuse and neglect or what they characterize
as dependency proceedings.
Justice Georges: That's a Mass regulation or is that?
-: That is the regulation under,
that are promulgated by the AAICPC
Justice Georges: Okay.
So, that's a national regulation.
It's not-
-: That is a national regulation.
But I would also direct Your Honor to-
-: And it says that they need to consult
with the receiving state in a guardianship situation?
-: What it says is that
when there is an open abuse and neglect proceeding
under the jurisdiction of a court,
that that is subject to the ICPC.
-: Okay so, I guess what I hear you saying is
if there were, if the children were not in DCF custody,
but these were just children who, for whatever reason,
needed guardians
and two guardians came forward from Pennsylvania
who were perfectly suitable
and filed a guardianship petition,
in those circumstances, the judge would not need to
follow the ICPC or consult with Pennsylvania.
-: I hate to give you an it depends answer,
but I'm going to.
If the family members or
if whoever has custody of those children
prior to the allowance of the guardianship
falls within a subset of family members such as parents
and close family members, grandparents,
adult brothers, sisters, uncles,
I would say that they would not need to go
through the ICPC.
-: Okay. -: And that's Article 8.
-: So it's really,
so it's the fact that the children are in DCF custody.
-: I think in this particular case,
and I don't wanna speak because the ICPC is very broad,
but in this particular case, yes,
the children are under the supervision
of the juvenile court.
The juvenile court is the sending agency
and this meets the intention of the ICPC,
which is to protect children who are subject of abuse
and neglect proceedings.
-: Now, do you agree that there was no mechanism?
It's one of the mechanisms I found myself wondering about.
And again, I do not remember where this piece
of random information came into my head from,
but I remember that there's some mechanism
for the judge in Massachusetts to reach out
to a judge in a foreign jurisdiction to ask for
that foreign jurisdiction's aide
in a child placement situation.
Could the judge have,
is there any mechanism by which the judge in Massachusetts
could have asked for merits based evaluation
of this couple by Pennsylvania?
Tracy: I'm sorry.
I didn't hear what you said before evaluation.
-: Is there a merits based evaluation?
Tracy: I don't know what that means.
-: In other words, their suitability as guardians,
not just based,
based on a multi-factor assessment,
not just he came up with a criminal history.
-: Right.
Well, Your Honor, I believe that is
what happened with the home study that was presented
to the court by the children.
I believe that the mechanism for that would be
because the juvenile court's the sending agency,
they would have to contact the administrator
of the compact for Pennsylvania
and request a home study through Pennsylvania.
And that's how that would happen.
-: All right.
So if we were all to agree, and I'm just assuming
because DCF doesn't contest this,
that we all agree that
this couple is a good placement.
Tracy: Yes.
-: Is there a way that this case could be remanded
to ask the judge to make that request?
-: Where we would land, unfortunately, Your Honor,
is if this case was remanded in the court,
made a request for an interstate home study
through the administrator of the Pennsylvania compact,
the same problem would arise,
that this gentleman's quarry,
or criminal record would bar him from-
-: [Justice Wendlandt] Because that's just
Pennsylvania's rule.
-: That's Pennsylvania.
It's a statute in Pennsylvania.
-: Right, so regardless of whether you phone a friend in-
Tracy: Right.
-: In Pennsylvania or not, the rule would be binding
on that entity as well, that judge as well
because Pennsylvania, just as a matter of its own policy,
has said regardless of how great you are
and how much you've been redeemed,
and I agree that this is,
it does appear that this would be a perfect place placement
for the kids, but Pennsylvania's rule is no.
Tracy: Correct.
That's correct.
-: So now can I ask you about the plain language then
of the statute at issue here?
It doesn't actually say guardianship
and it doesn't just say placements.
It talks about foster care and adoption, in particular.
Why expand it then?
-: I don't believe it's expanding it, Your Honor.
-: [Justice Wendlandt] What's your statutory language
basis for that?
-: Well, first of all, I'm going to refer you to the article
to definition of placement, which is quite broad.
It's just care with family.
So then you go over to Article 3
and you look at the provisions of Article 3
and there is reference in the provisions of Article 3
to placement and I know it does say in foster care
or is preliminary to adoption.
But what you have to remember about the ICPC
is that this is a statute that addresses
50 plus jurisdictions.
And so, the language
has to be construed very broadly.
And I believe Article 7,
it says something to the effect of,
construing it broad,
or actually it might be Article 10.
Don't quote me on that.
But when you look down at Subsection D of Article 3,
it says, "A child shall not be sent, brought,
or caused to be sent or brought into a receiving state
until the appropriate public authorities
in the receiving state shall notify the sending agency
in writing that the placement is not contrary
to the interest of the child."
So I think that gets you where you need to be right there.
Justice Kafker: Where is that provision,
that's what provision you're reading from?
-: Article 3. -: Subsection D.
-: That would be under Article 3, Subsection D.
And I also wanna point you
to the definitions section
of the administrators of the ICPC.
They have a definition section of their regulations.
And, in Regulation number 2,
let me see.
Regulation number 2, they have a number,
I'm sorry.
There are a lot of regulations here.
In their definition section, they define foster care.
And foster care is also defined broadly
under the regulations of the AAICPC.
And that definition, Your Honors,
says that it is,
a foster placement is essentially substitute care
and licensure and payment are not condition precedent
to it being a foster home.
So they're not looking at foster care
in the traditional sense.
-: Right because guardianship is a concept
that's gotta be applied in all 50 states, right?
And- -: I agree with you.
-: And words that are lettered with.
-: And I do believe that a guardianship is,
well, at first I think that Article 8
deals directly with guardianships, correct?
In that it specifies that you have a number
of close relatives and guardians
who can make placements without complying with the ICPC.
Justice Kafker: And these people don't meet
that definition?
Great aunt and uncle is not?
-: No, they do not meet that definition.
And I would add that under-
-: That apply even if the child were in DCF custody
or it only applies when it's a transfer
from one family member to another?
Tracy: It only applies when it's a transfer
from one family member to another.
-: So is is the,
everyone's heartstrings are legitimately pulled here,
but is this fixable in Pennsylvania?
I mean, we're doing back flips and-
-: I know. -: Triple jumps and-
Tracy: I know.
-: And is this something that is clearly you bring
to Pennsylvania and say, you didn't really mean this
or you did mean it and it's unconstitutional.
I mean, are we the wrong forum for this?
-: I can tell you,
I agree with counsel.
I don't see any ready way
to appeal this decision administratively.
Justice Kafker: In Pennsylvania?
-: In Pennsylvania and there is not,
from what I could tell in my research.
-: Pennsylvania doesn't have a statutory equivalent
that says if there's no other remedy,
you can't do blankety blank?
I mean, seems,
it's hard to imagine there's something unconstitutional
that can't be challenged.
-: Well, I can tell you,
and when I was doing my research for this brief,
that I did see cases
where school employees challenge this particular statute
as unconstitutional.
So there is a chain of case law related to educators,
but I did not find anything in the case law
related to foster parents
and whether this statute is unconstitutional
as it would apply to foster parents,
especially kinship foster care.
Justice Georges: Counsel, before we lose you,
can you just address the issue of the great aunt
and the great uncle not being part of these proceedings?
-: Yes, I was gonna address that.
I got sidetracked.
I think Tara is directly on point.
-: [Justice Wendlandt] Well except Tara, we had no statement
of interest or continued interest.
-: Correct.
We did not but-
-: [Justice Wendlandt] But here we know
that the guardians are still interested in being guardians.
-: And that is true but-
-: So we don't have the problem in Tara
where the appeals court just didn't know.
If the guardians had said, you know, "Well we tried.
We're no longer interested, we're gonna go home."
-: And that's a fair point, Your Honor,
but I would just point you to the other part
of the department's brief where there's discussion about,
because ultimately Pennsylvania deems whether
or not this is a violation of the ICPC
and if these children require services
and they're in Pennsylvania in the future.
And I think given the history
and the factual history of this case,
it's likely that they'll need services.
Pennsylvania can deny them services if they feel
this was a violation of the ICPC.
So really the question for the guardians
is if they deem this a violation of the ICPC,
can we assure that these children
will have services going forward?
Do you have the financial resources
to provide services going forward?
Now I'm not advocating that
that's the direction the court should go.
I think firmly this is a violation of the ICPC
and that the court was correct.
But if that is a direction you were going to look at,
the problem here is that the guardians are not here
to answer questions about that.
And I think in this case, they really do need to be here.
Rules 3 and 4 and juvenile court Rule 20,
there's a reason why we look for formal notice
of appeals and that parties need to be here at court.
And that's to answer those kinds of questions.
They're not here.
So I would say that Tara is specifically on point
and they're necessary parties as I just explained,
and that this should not that-
-: [Justice Wolohojian] So if we ruled on that basis,
we would dismiss the appeal, I take it.
-: Yes.
-: And would that preclude
a whole reinitiation of similar guardianship petition?
What if they filed a guardianship petition in Pennsylvania?
Tracy: Well, the problem with that is that the department
is the custodian at this time
under Chapter 119, Section 26.
The department has permanent custody of those children.
So we would have to-
-: So they would have to file the petition here?
Tracy: Yes, yes.
They have to file that petition here.
-: But would our dismissal of this appeal,
because they weren't present, preclude them refiling?
-: I didn't see anything in the docket that indicated
to me that the petition had been denied
without prejudice or with prejudice.
I think that would be something that would have to go back
to the juvenile court judge
and be argued at the juvenile court level.
Justice Georges: But we might end up
in the same situation and keep doing this dosey doe.
-: [Justice Wolohojian] Yep.
-: Which is why the department thoroughly
addressed the issue of the ICPC
and its applicability in this case in its brief.
And, I am well over my time at this point.
So I would just say that I'd ask you to affirm the decision
of the lower court and to the extent I didn't get
to discuss all of my points,
I would rest on my brief going forward and I thank you
for your time today. -: Okay.