DE ST TI 31 § 381
31 Del.C. § 381
West's Delaware Code Annotated Currentness
Title 31. Welfare
Part I. In General
Chapter 3. Child Welfare
Subchapter VI. Interstate Compact for the Placement of Children
§
381. Interstate Compact for the Placement of Children; enactment
<Text
of section effective upon enactment by 35 states and upon approval of
the Interstate Commission on the Placement of Children. See, also, section
currently in effect.>
The
State of Delaware hereby enters into the Interstate Compact for the
Placement of Children as set forth in this section. The Compact
shall take effect upon enactment
by at least 35 states and upon approval of the Interstate Commission on
the Placement of Children. The text of the Compact is as follows:
ARTICLE
I. PURPOSE
The purpose of this Interstate Compact for the Placement of Children is to:
A. Provide a process through
which children subject to this compact are placed in safe and suitable homes in a timely manner.
B. Facilitate ongoing supervision
of a placement, the delivery of services, and communication between the states.
C. Provide operating procedures
that will ensure that children are placed in safe and suitable homes in a timely manner.
D.
Provide for the promulgation
and enforcement of administrative rules implementing the provisions of
this compact and regulating the covered activities of the member states.
E.
Provide for uniform data collection and information sharing between member states under this compact.
F.
Promote coordination between
this compact, the Interstate Compact for Juveniles [§ 5203 of this
title], the Interstate Compact on Adoption and Medical Assistance and
other compacts affecting the placement of and which provide services to
children otherwise subject to this compact.
G.
Provide for a state's continuing
legal jurisdiction and responsibility for placement and care of a child
that it would have had if the placement were intrastate.
H.
Provide for the promulgation
of guidelines, in collaboration with Indian tribes, for interstate
cases involving Indian children as is or may be permitted by federal
law.
ARTICLE
II. DEFINITIONS
As used in this compact,
A.
"Approved placement" means
the public child placing agency in the receiving state has determined
that the placement is both safe and suitable for the child.
B.
"Assessment" means an evaluation
of a prospective placement by a public child placing agency in the
receiving state to determine if the placement meets the individualized
needs of the child, including but not limited to the child's safety and
stability, health and well-being, and mental,
emotional, and physical development. An assessment is only applicable
to a placement by a public child placing agency.
C.
"Child" means an individual who has not attained the age of 18.
D. "Certification" means to
attest, declare or swear to before a judge or notary public.
E.
"Default" means the failure
of a member state to perform the obligations or responsibilities
imposed upon it by this compact, the bylaws or rules of the Interstate
Commission.
F.
"Home study" means an evaluation
of a home environment conducted in accordance with the applicable
requirements of the state in which the home is located, and documents
the preparation and the suitability of the placement resource for
placement of a child in accordance with the laws and requirements
of the state in which the home is located.
G. "Indian tribe" means any
Indian tribe, band, nation, or other organized group
or community of Indians recognized as eligible for services provided to
Indians by the Secretary of the Interior because of their status as
Indians, including any Alaskan "native village" as defined in section
3(c) of the Alaska Native Claims settlement Act
at 43 U.S.C. § 1602(c).
H.
"Interstate Commission for
the Placement of Children" means the commission that is created under
Article VIII of this compact and which is generally referred to as the
Interstate Commission.
I. "Jurisdiction" means the
power and authority of a court to hear and decide matters.
J.
"Legal risk placement" ("legal
risk adoption") means a placement made preliminary to an adoption where
the prospective adoptive parents acknowledge in writing that a child
can be ordered returned to the sending state or the birth mother's state
of residence, if different from the sending
state, and a final decree of adoption shall not be entered in any
jurisdiction until all
required consents are obtained
or are dispensed with in accordance with applicable law.
K. "Member state" means a state
that has enacted this compact.
L.
"Noncustodial parent" means
a person who, at the time of the commencement of court proceedings in
the sending state, does not have sole legal custody of the child or has
joint legal custody of a child, and who is not the subject of
allegations or findings of child abuse or neglect.
M. "Nonmember state" means a
state which has not enacted this compact.
N.
"Notice of residential placement"
means information regarding a placement into a residential facility
provided to the receiving state including, but not limited to the name,
date and place of birth of the child, the identity and address of the
parent or legal guardian, evidence of authority
to make the placement,
and
the name and address of the facility in which the child will be placed.
Notice of residential placement shall also include information
regarding a discharge and any unauthorized absence from the facility.
O. "Placement" means the act
by a public or private child placing agency intended to arrange for the care or custody of a child in another state.
P.
"Private child placing agency"
means any private corporation, agency, foundation, institution, or
charitable organization, or any private person or attorney that
facilitates, causes, or is involved in the placement of a child from 1
state to another and that is not an instrumentality of
the state or acting under color of state law.
Q.
"Provisional placement" means
a determination made by the public child placing agency in the
receiving state that the proposed placement is safe and suitable, and,
to the extent allowable, the receiving state has temporarily waived its
standards or requirements otherwise applicable to
prospective foster or
adoptive
parents so as to not delay the placement. Completion of the receiving
state requirements regarding training for prospective foster or adoptive
parents shall not delay an otherwise safe and suitable placement.
R.
"Public child placing agency"
means any government child welfare agency or child protection agency or
a private entity under contract with such an agency, regardless of
whether they act on behalf of a state, county, municipality or other
governmental unit and which facilitates, causes,
or is involved in the placement of a child from 1 state to another.
S. "Receiving state" means the state to which a child is sent, brought, or caused to be sent or brought.
T.
"Relative" means someone
who is related to the child as a parent, stepparent, sibling by half or
whole blood or by adoption, grandparent, aunt, uncle, or first cousin
or a nonrelative with such significant ties to the child that they may
be regarded as relatives as determined by the
court in the sending state.
U.
"Residential facility" means
a facility providing a level of care that is sufficient to substitute
for parental responsibility or foster care, and is beyond what is needed
for assessment or treatment of an acute condition. For purposes of the
compact, residential facilities do not include
institutions primarily educational in character, hospitals or other
medical facilities.
V.
"Rule" means a written directive,
mandate, standard or principle issued by the Interstate Commission
promulgated pursuant to Article XI of this compact that is of general
applicability and that implements, interprets or prescribes a policy or
provision of the compact. "Rule" has the force
and effect of an administrative rule in a member state, and includes
the amendment, repeal, or suspension of an existing rule.
W. "Sending state" means the
state from which the placement of a child is initiated.
X.
"Service member's permanent duty station" means the military
installation where an active duty armed services member is currently
assigned and is physically located under competent orders that do not
specify the duty as temporary.
Y.
"Service member's state of
legal residence" means the state in which the active duty armed
services member is considered a resident for tax and voting purposes.
Z.
"State" means a state of
the United States, the District of Columbia, the Commonwealth of Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, the Northern
Marianas Islands and any other territory of the United States.
AA. "State court" means a judicial
body of a state that is vested by law with responsibility for adjudicating cases involving abuse, neglect, deprivation,
delinquency or status offenses
of individuals who have not attained the age of 18.
BB. "Supervision" means monitoring
provided by the receiving state once a child has been placed in a receiving state pursuant to this compact.
ARTICLE III. APPLICABILITY
A.
Except as otherwise provided in Article III, Section B, this compact shall apply to:
1.
The interstate placement
of a child subject to ongoing court jurisdiction in the sending state,
due to allegations or findings that the child has been abused,
neglected, or deprived as defined by the laws of the sending state,
provided, however, that the placement of such a child
into a residential facility shall only require notice of residential
placement to the receiving
state prior to placement.
2.
The interstate placement
of a child adjudicated delinquent or unmanageable based on the laws of
the sending state and subject to ongoing court jurisdiction of the
sending state if:
a. The child is being placed
in a residential facility in another member state and is not covered under another compact; or
b.
The child is being placed
in another member state and the determination of safety and suitability
of the placement and services required is not provided through another
compact.
3.
The interstate placement
of any child by a public child placing agency or private child placing
agency as defined in this compact as a preliminary step to a possible
adoption.
B.
The provisions of this compact shall not apply to:
1.
The interstate placement
of a child in a custody proceeding in which a public child placing
agency is not a party, provided, the placement is not intended to
effectuate an adoption.
2.
The interstate placement
of a child with a nonelative in a receiving state by a parent with the
legal authority to make such a placement provided, however, that the
placement is not intended to effectuate an adoption.
3. The interstate placement
of a child by 1 relative with the lawful authority to make such a placement directly with a relative in a receiving state.
4. The placement of a child,
not subject to Article III, Section A, of this compact
into a residential facility by his parent.
5. The placement of a child
with a noncustodial parent provided that:
a. The noncustodial parent proves
to the satisfaction of a court in the sending state a substantial relationship with the child; and
b. The court in the sending
state makes a written finding that placement with the noncustodial parent is in the best interests of the child; and
c.
The court in the sending
state dismisses its jurisdiction in interstate placements in which the
public child placing agency is a party to the proceeding.
6. A child entering the United
States from a foreign country for the purpose of adoption
or leaving the United States to go to a foreign country for the purpose of adoption in that country.
7.
Cases in which a U.S. citizen
child living overseas with his family, at least 1 of whom is in the
U.S. armed services, and who is stationed overseas, is removed and
placed in a state.
8.
The sending of a child by
a public child placing agency or a private child placing agency for a
visit as defined by the rules of the Interstate Commission.
C.
For purposes of determining
the applicability of this compact to the placement of a child with a
family in the armed services, the public child placing agency or private
child placing agency may choose the state of the service member's
permanent duty station or the service member's declared
legal residence.
D.
Nothing in this compact shall be construed to prohibit the concurrent
application of the provisions of this compact with other applicable
interstate compacts including the Interstate Compact for Juveniles and
the Interstate Compact on Adoption and Medical
Assistance. The Interstate Commission may in cooperation with other
interstate compact commissions having responsibility for the interstate
movement, placement or transfer of children, promulgate like rules to
ensure the coordination of services, timely placement
of children, and the reduction of unnecessary or duplicative
administrative or procedural requirements.
ARTICLE IV. JURISDICTION
A.
Except as provided in Article IV, Section H and Article V, Section B,
paragraph 2. and 3. of this compact concerning private and independent
adoptions, and in interstate placements in which the public child
placing agency is not a party to a custody proceeding,
the sending state shall retain jurisdiction over a child with respect
to all matters of custody and
disposition
of the child which
it would have had if the child had remained in the sending state.
Such jurisdiction shall also include the power to order the return
of the child to the sending state.
B.
When an issue of child protection
or custody is brought before a court in the receiving state, such court
shall confer with the court of the sending state to determine the most
appropriate forum for adjudication.
C.
In cases that are before
courts and subject to this compact, the taking of testimony for
hearings before any judicial officer may occur in person or by
telephone, audio-video conference, or such other means as approved by
the rules of the Interstate Commission; and Judicial officers
may communicate with other judicial officers and persons involved in
the interstate process as may be permitted by their Canons of Judicial
Conduct and any rules promulgated by the Interstate Commission.
D. In accordance with its own
laws, the court in the sending state shall have authority
to terminate its jurisdiction if:
1.
The child is reunified with
the parent in the receiving state who is the subject of allegations or
findings of abuse or neglect, only with the concurrence of the public
child placing agency in the receiving state; or
2. The child is adopted;
3. The child reaches the age
of majority under the laws of the sending state; or
4. The child achieves legal
independence pursuant to the laws of the sending state; or
5. A guardianship is created
by a court in the receiving state with the concurrence
of the court in the sending state; or
6. An Indian tribe has petitioned
for and received jurisdiction from the court in the sending state; or
7.
The public child placing
agency of the sending state requests termination and has obtained the
concurrence of the public child placing agency in the receiving the
state.
E. When a sending state court
terminates its jurisdiction, the receiving state child placing agency shall be notified.
F.
Nothing in this article shall
defeat a claim of jurisdiction by a receiving state court sufficient to
deal with an act of truancy, delinquency, crime or behavior involving a
child as defined by the laws of the receiving state committed by the
child in the receiving state which would be
a violation of its laws.
G. Nothing in this article shall
limit the receiving state's ability to take emergency jurisdiction for the protection of the child.
H.
The substantive laws of the
state in which an adoption will be finalized shall solely govern all
issues relating to the adoption of the child and the court in which the
adoption proceeding is filed shall have subject matter jurisdiction
regarding all substantive issues relating to the
adoption, except:
1. When the child is a ward
of another court that established jurisdiction over the child prior to the placement; or
2. When the child is in the
legal custody of a public agency in the sending state; or
3.
When a court in the sending state has otherwise appropriately assumed
jurisdiction over the child, prior to the submission of the request for
approval of placement.
I.
A final decree of adoption
shall not be entered in any jurisdiction until the placement is
authorized as an "approved placement" by the public child placing agency
in the receiving state.
ARTICLE V. PLACEMENT EVALUATION
A.
Prior to sending, bringing, or causing a child to be sent or brought
into a receiving state, the public child placing agency shall provide a
written request for assessment to the receiving state.
B. For placements by a private
child placing agency, a child may be sent or brought,
or caused to be sent or brought, into a receiving state, upon receipt
and immediate review of the required content in a request for approval
of a placement in both the sending and receiving state public child
placing agency. The required content to accompany
a request for approval shall include all of following:
1.
A request for approval identifying
the child, birth parent(s), the prospective adoptive parent(s), and the
supervising agency, signed by the person requesting approval; and
2.
The appropriate consents
or relinquishments signed by the birth-parents in accordance with the
laws of the sending state, or where permitted the laws of the state
where the adoption will be finalized; and
3.
Certification by a licensed
attorney or authorized agent of a private adoption agency that the
consent or relinquishment is in compliance with the applicable laws of
the sending state, or where permitted the laws of the state
where finalization of the
adoption will occur; and
4. A home study; and
5. An acknowledgment of legal
risk signed by the prospective adoptive parents.
C.
The sending state and the
receiving state may request additional information or documents prior
to finalization of an approved placement, but they may not delay travel
by the prospective adoptive parents with the child if the required
content for approval has been submitted, received
and reviewed by the public child placing agency in both the sending
state and the receiving state.
D.
Approval from the public
child placing agency in the receiving state for a provisional or
approved placement is required as provided for in the rules of the
Interstate Commission.
E.
The procedures for making and the request for an assessment shall
contain all information and be in such form as provided for in the rules
of the Interstate Commission.
F.
Upon receipt of a request
from the public child placing agency of the sending state, the
receiving state shall initiate an assessment of the proposed placement
to determine its safety and suitability. If the proposed placement
is a placement with a relative, the public child placing
agency of the sending state may request a determination for a
provisional placement.
G.
The public child placing
agency in the receiving state may request from the public child placing
agency or the private child placing agency in the sending state, and
shall be entitled to receive supporting or additional information
necessary to complete the assessment or approve the
placement.
H. The public child placing
agency in the receiving state shall approve a provisional
placement and complete or arrange for the completion of the assessment
within the timeframes established by the rules of the Interstate
Commission.
I.
For a placement by a private
child placing agency, the sending state shall not impose any additional
requirements to complete the home study that are not required by the
receiving state, unless the adoption is finalized in the sending state.
J. The Interstate Commission
may develop uniform standards for the assessment of the safety and suitability of interstate placements.
ARTICLE VI. PLACEMENT AUTHORITY
A.
Except as otherwise provided in this compact, no child subject to this
compact shall be placed into a receiving state until approval for such
placement is obtained.
B.
If the public child placing
agency in the receiving state does not approve the proposed placement
then the child shall not be placed. The receiving state shall
provide written documentation of any such determination in accordance
with the rules promulgated by the Interstate Commission.
Such determination is not subject to judicial review in the
sending state.
C.
If the proposed placement
is not approved, any interested party shall have standing to seek an
administrative review of the receiving state's determination.
1.
The administrative review
and any further judicial review associated with the determination shall
be conducted in the receiving state pursuant to its applicable
administrative procedures.
2.
If a determination not to approve the placement of the child in the
receiving state is overturned upon review, the placement shall be deemed
approved, provided however that all administrative or judicial remedies
have been exhausted or the time for such remedies
has passed.
ARTICLE VII. PLACING AGENCY
RESPONSIBILITY
A.
For the interstate placement of a child made by a public child placing agency or state court:
1. The public child placing
agency in the sending state shall have financial responsibility for:
a. The ongoing support and maintenance
for the child during the period of the placement, unless otherwise provided for in the receiving state; and
b.
As determined by the public child placing agency in the sending state,
services for the child beyond the public services for which the child is
eligible in the receiving state.
2. [FN1]The
receiving state shall only have financial responsibility for:
1. Any assessment conducted by the receiving state; and
2.
Supervision conducted by the receiving state at the level necessary to
support the placement as agreed upon by the public child placing
agencies of the receiving
and sending state.
3.
Nothing in this provision
shall prohibit public child placing agencies in the sending state from
entering into agreements with licensed agencies or persons in the
receiving state to conduct assessments and provide supervision.
B.
For the placement of a child by a private child placing agency
preliminary to a possible adoption, the private child placing agency
shall be:
1. Legally responsible for the
child during the period of placement as provided for in the law of the sending state until the finalization of the adoption.
2. Financially responsible for
the child absent a contractual agreement to the contrary.
C. The public child placing
agency in the receiving state shall provide timely assessments, as provided for in the rules of the Interstate Commission.
D. The public child placing
agency in the receiving state shall provide, or arrange for the provision of, supervision and services for the child, including
timely reports, during the
period of the placement.
E.
Nothing in this compact shall
be construed as to limit the authority of the public child placing
agency in the receiving state from contracting with a licensed agency or
person in the receiving state for an assessment or the provision of
supervision or services for the child or otherwise
authorizing the provision of supervision or services by a licensed
agency during the period of placement.
F.
Each member state shall provide
for coordination among its branches of government concerning the
state's participation in, and compliance with, the compact and
Interstate Commission activities, through the creation of an advisory
council or use of an existing body or board.
G.
Each member state shall establish
a central state compact office, which shall be responsible for state
compliance with the compact and the rules of the Interstate Commission.
H.
The public child placing agency in the sending state shall oversee compliance with the provisions of the
Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) for placements
subject to the provisions of this compact, prior to placement.
I.
With the consent of the Interstate
Commission, states may enter into limited agreements that facilitate
the timely assessment and provision of services and supervision of
placements under this compact.
ARTICLE VIII. INTERSTATE COMMISSION FOR
THE PLACEMENT OF CHILDREN
The
member states hereby establish, by way of this compact, a commission
known as the "Interstate Commission for the Placement of Children."
The activities of the
Interstate Commission are the formation of public policy and are a
discretionary state function. The Interstate Commission shall:
A.
Be a joint commission of the member states and shall have the
responsibilities, powers and duties set forth herein, and such
additional powers as may be conferred upon it by subsequent concurrent
action of the respective legislatures of the member states.
B.
Consist of 1 commissioner
from each member state who shall be appointed by the executive head of
the state human services administration with ultimate responsibility for
the child welfare program. The appointed commissioner shall have
the legal authority to vote on policy related
matters governed by this compact binding the state.
1. Each member state represented
at a meeting of the Interstate Commission is entitled to 1 vote.
2. A majority of the member
states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of
the Interstate Commission.
3. A representative shall not
delegate a vote to another member state.
4. A representative may delegate
voting authority to another person from their state for a specified meeting.
C.
In addition to the commissioners
of each member state, the Interstate Commission shall include persons
who are members of interested organizations as defined in the bylaws or
rules of the Interstate Commission. Such members shall be ex
officio and shall not be entitled to vote on any matter
before the Interstate Commission.
D.
Establish an executive committee
which shall have the authority to administer the day-to-day operations
and administration of the Interstate Commission. It shall not have the
power to engage in rulemaking.
ARTICLE
IX. POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The Interstate Commission shall have the following powers:
A. To promulgate rules and take
all necessary actions to effect the goals, purposes and obligations as enumerated in this compact.
B. To provide for dispute resolution
among member states.
C.
To issue, upon request of
a member state, advisory opinions concerning the meaning or
interpretation of the interstate compact, its bylaws, rules or actions.
D. To enforce compliance with
this compact or the bylaws or rules of the Interstate
Commission pursuant to Article XII of this compact.
E.
Collect standardized data
concerning the interstate placement of children subject to this compact
as directed through its rules which shall specify the data to be
collected, the means of collection and data exchange and reporting
requirements.
F. To establish and maintain
offices as may be necessary for the transacting of its business.
G. To purchase and maintain
insurance and bonds.
H.
To hire or contract for services
of personnel or consultants as necessary to carry out its functions
under the compact and establish personnel qualification policies, and
rates of compensation.
I.
To establish and appoint committees and officers including, but not
limited to, an executive committee as required by Article X of this
compact.
J. To accept any and all donations
and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose thereof.
K. To lease, purchase, accept
contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal, or mixed.
L. To sell, convey, mortgage,
pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal or mixed.
M. To establish a budget and
make expenditures.
N.
To adopt a seal and bylaws governing the management and operation of the Interstate Commission.
O.
To report annually to the
legislatures, governors, the judiciary, and state advisory councils of
the member states concerning the activities of the Interstate Commission
during the preceding year. Such reports shall also include any
recommendations that may have been adopted by the
Interstate Commission.
P. To coordinate and provide
education, training and public awareness regarding the interstate movement of children for officials involved in such activity.
Q. To maintain books and records
in accordance with the bylaws of the Interstate Commission.
R. To perform such functions
as may be necessary or appropriate to achieve the purposes
of this compact.
ARTICLE X. ORGANIZATION AND
OPERATION OF THE INTERSTATE COMMISSION
A.
Bylaws.
1.
Within 12 months after the
first Interstate Commission meeting, the Interstate Commission shall
adopt bylaws to govern its conduct as may be necessary or appropriate to
carry out the purposes of the compact.
2.
The Interstate Commission's
bylaws and rules shall establish conditions and procedures under which
the Interstate Commission shall make its information and official
records available to the public for inspection or copying. The
Interstate Commission may exempt from disclosure information
or official records to the extent they would adversely affect personal
privacy rights or proprietary interests.
B.
Meetings.
1.
The Interstate Commission
shall meet at least once each calendar year. The chairperson may
call additional meetings and, upon the request of a simple majority of
the member states shall call additional meetings.
2.
Public notice shall be given
by the Interstate Commission of all meetings and all meetings shall be
open to the public, except as set forth in the rules or as otherwise
provided in the compact. The Interstate Commission and its
committees may close a meeting, or portion thereof, where
it determines by two-thirds vote that an open meeting would be likely
to:
a. Relate solely to the Interstate
Commission's internal personnel practices and procedures; or
b.
Disclose matters specifically exempted from disclosure by federal law; or
c. Disclose financial or commercial
information which is privileged, proprietary or confidential in nature; or
d. Involve accusing a person
of a crime, or formally censuring a person; or
e.
Disclose information of a
personal nature where disclosure would constitute a clearly unwarranted
invasion of personal privacy or physically endanger 1 or more persons;
or
f. Disclose investigative records
compiled for law enforcement purposes; or
g. Specifically relate to the
Interstate Commission's participation in a civil action
or other legal proceeding.
3.
For a meeting, or portion
of a meeting, closed pursuant to this provision, the Interstate
Commission's legal counsel or designee shall certify that the meeting
may be closed and shall reference each relevant exemption provision. The
Interstate Commission shall keep minutes which shall
fully and clearly describe all matters discussed in a meeting and shall
provide a full and accurate summary of actions taken, and the reasons
therefore, including a description of the views expressed and the record
of a roll call vote. All documents considered
in connection with an action shall be identified in such minutes.
All minutes and documents of a closed meeting shall remain under
seal, subject to release by a majority vote of the Interstate Commission
or by court order.
4. The bylaws may provide for
meetings of the Interstate Commission to be conducted by telecommunication or other electronic communication.
C.
Officers and staff.
1.
The Interstate Commission
may, through its executive committee, appoint or retain a staff
director for such period, upon such terms and conditions and for such
compensation as the Interstate Commission may deem appropriate.
The staff director shall serve as secretary to the Interstate
Commission, but shall not have a vote. The staff director may hire and
supervise such other staff as may be authorized by the Interstate
Commission.
2.
The Interstate Commission
shall elect, from among its members, a chairperson and a vice
chairperson of the executive committee and other necessary officers,
each of whom shall have such authority and duties as may be specified in
the bylaws.
D. Qualified immunity, defense
and indemnification.
1.
The Interstate Commission's staff director and its employees shall be
immune from suit and liability, either personally or in their official
capacity, for a claim for damage to or loss of property or personal
injury or other civil liability caused or arising
out of or relating to an actual or alleged act, error, or omission that
occurred, or that such person had a reasonable basis for believing
occurred within the scope of Commission employment, duties, or
responsibilities; provided, that such person shall not
be immune from suit or liability for damage, loss, injury, or liability
caused by a criminal act or the intentional or wilful and wanton
misconduct or the reckless or gross negligence of such person.
a.
The liability of the Interstate
Commission's staff director and employees or Interstate Commission
representatives, acting within the scope of such person's employment or
duties for acts, errors, or omissions occurring within such person's
state may not exceed the limits of liability set
forth under the Constitution and laws of that state for state
officials, employees, and agents. The Interstate Commission is
considered to be an instrumentality of the states for the purposes of
any such action. Nothing in this subsection shall be construed
to make immune such person from suit or liability for damage,
loss, injury, or liability caused by a criminal act or the intentional
or wilful and wanton misconduct or the reckless or gross negligence of
such person.
b.
The Interstate Commission
shall defend the staff director and its employees and, subject to the
approval of the Attorney General or other appropriate legal counsel of
the member state shall defend the commissioner of a member state in a
civil action seeking to impose liability arising
out of an actual or alleged act, error or omission that occurred within
the scope of Interstate Commission employment, duties or
responsibilities, or that the defendant had a reasonable basis for
believing occurred within the scope of Interstate Commission
employment, duties, or responsibilities, provided that the actual or
alleged act, error, or omission did not result from a criminal act or
intentional or wilful and wanton misconduct or the reckless or gross
negligence on the part of such person.
c. To the extent not covered
by the state involved, member state, or the Interstate Commission, the representatives or employees of the Interstate
Commission
shall be held harmless
in the amount of a settlement or judgment, including attorneys' fees
and costs, obtained against such persons arising out of an actual or
alleged act, error, or omission that occurred within the scope of
Interstate Commission employment, duties, or responsibilities,
or that such persons had a reasonable basis for believing occurred
within the scope of Interstate Commission employment, duties, or
responsibilities, provided that the actual or alleged act, error, or
omission did not result from a criminal act or from intentional
or wilful and wanton misconduct or the reckless or gross negligence on
the part of such person.
ARTICLE XI. RULEMAKING FUNCTIONS
OF THE INTERSTATE COMMISSION
A.
The Interstate Commission shall promulgate and publish rules in order
to effectively and efficiently achieve the purposes of the compact.
B. Rulemaking shall occur pursuant
to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall
substantially
conform to the
principles of the "Model State Administrative Procedures Act," 1981
Act, Uniform Laws Annotated, Vol. 15, p.1 (2000), or such other
administrative procedure acts as the Interstate Commission deems
appropriate consistent with due process requirements under
the United States Constitution as now or hereafter interpreted by the
U. S. Supreme Court. All rules and amendments shall become binding
as of the date specified, as published with the final version of the
rule as approved by the Interstate Commission.
C. When promulgating a rule,
the Interstate Commission shall, at a minimum:
1. Publish the proposed rule's
entire text stating the reason(s) for that proposed rule; and
2.
Allow and invite any and
all persons to submit written data, facts, opinions and arguments,
which information shall be added to the record, and be made publicly
available; and
3.
Promulgate a final rule and its effective date, if appropriate, based
on input from state or local officials, or interested parties.
D.
Rules promulgated by the
Interstate Commission shall have the force and effect of administrative
rules and shall be binding in the compacting states to the extent and
in the manner provided for in this compact.
E.
Not later than 60 days after
a rule is promulgated, an interested person may file a petition in the
U.S. District Court for the District of Columbia or in the Federal
District Court where the Interstate Commission's principal office is
located for judicial review of such rule. If the
court finds that the Interstate Commission's action is not supported by
substantial evidence in the rulemaking record, the court shall hold the
rule unlawful and set it aside.
F. If a majority of the legislatures
of the member states rejects a rule, those states
may by enactment of a statute or resolution in the same manner used to
adopt the compact cause that such rule shall have no further force and
effect in any member state.
G.
The existing rules governing
the operation of the Interstate Compact for the Placement of Children
superseded by this act shall be null and void no less than 12, but no
more than 24 months after the first meeting of the Interstate Commission
created hereunder, as determined by the members
during the first meeting.
H. Within the first 12 months
of operation, the Interstate Commission shall promulgate rules addressing the following:
1. Transition rules
2. Forms and procedures
3.
Time lines
4. Data collection and reporting
5. Rulemaking
6. Visitation
7. Progress reports/
8. Sharing of information/
9.
Financing of the Interstate Commission
10. Mediation, arbitration and
dispute resolution
11. Education, training and
technical assistance
12. Enforcement
13. Coordination with other
interstate compacts
I. Upon determination by a majority
of the members of the Interstate Commission that an emergency exists:
1. The Interstate Commission
may promulgate an emergency rule only if it is required
to:
a. Protect the children covered
by this compact from an imminent threat to their health, safety and well-being; or
b. Prevent loss of federal or
state funds; or
c. Meet a deadline for the promulgation
of an administrative rule required by federal law.
2.
An emergency rule shall become
effective immediately upon adoption, provided that the usual rulemaking
procedures provided hereunder shall be retroactively applied to said
rule as soon as reasonably possible, but no later than 90 days after the
effective date of the emergency rule.
3.
An emergency rule shall be promulgated as provided for in the rules of the Interstate Commission.
ARTICLE XII. OVERSIGHT, DISPUTE RESOLUTION, ENFORCEMENT
A.
Oversight.
1. The Interstate Commission
shall oversee the administration and operation of the compact.
2.
The executive, legislative
and judicial branches of state government in each member state shall
enforce this compact and the rules of the Interstate Commission and
shall take all actions necessary and appropriate to effectuate the
compact's purposes and intent. The compact and its
rules shall be binding in the compacting states to the extent and in
the manner provided for in this compact.
3.
All courts shall take judicial notice of the compact and the rules in
any judicial or administrative proceeding in a member state pertaining
to the subject matter of this compact.
4.
The Interstate Commission
shall be entitled to receive service of process in any action in which
the validity of a compact provision or rule is the issue for which a
judicial determination has been sought and shall have standing to
intervene in any proceedings. Failure to provide
service of process to the Interstate Commission shall render any
judgment, order or other determination, however so captioned or
classified, void as to the Interstate Commission, this compact, its
bylaws or rules of the Interstate Commission.
B. Dispute resolution.
1. The Interstate Commission
shall attempt, upon the request of a member state, to
resolve disputes which are subject to the compact and which may arise
among member states and between member and nonmember states.
2.
The Interstate Commission
shall promulgate a rule providing for both mediation and binding
dispute resolution for disputes among compacting states. The costs of
such mediation or dispute resolution shall be the responsibility of the
parties to the dispute.
C. Enforcement.
1.
If the Interstate Commission
determines that a member state has defaulted in the performance of its
obligations or responsibilities under this compact, its bylaws or rules,
the Interstate Commission may:
a. Provide remedial training
and specific technical assistance; or
b.
Provide written notice to the defaulting state and other member states,
of the nature of the default and the means of curing the default.
The Interstate Commission shall specify the conditions by which
the defaulting state must cure its default; or
c.
By majority vote of the members,
initiate against a defaulting member state legal action in the United
State District Court for the District of Columbia or, at the discretion
of the Interstate Commission, in the federal district where the
Interstate Commission has its principal office, to
enforce compliance with the provisions of the compact, its bylaws or
rules. The relief sought may include both injunctive relief and
damages. In the event judicial enforcement is necessary the
prevailing party shall be awarded all costs of such litigation
including reasonable attorneys' fees; or
d. Avail itself of any other
remedies available under state law or the regulation of official or professional conduct.
ARTICLE
XIII. FINANCING OF THE COMMISSION
A.
The Interstate Commission shall pay, or provide for the payment of the
reasonable expenses of its establishment, organization and ongoing
activities.
B.
The Interstate Commission
may levy on and collect an annual assessment from each member state to
cover the cost of the operations and activities of the Interstate
Commission and its staff which must be in a total amount sufficient to
cover the Interstate Commission's annual budget
as approved by its members each year. The aggregate annual
assessment amount shall be allocated based upon a formula to be
determined by the Interstate Commission which shall promulgate a rule
binding upon all member states.
C.
The Interstate Commission
shall not incur obligations of any kind prior to securing the funds
adequate to meet the same; nor shall the Interstate Commission
pledge the credit of any of the member states, except by and with
the authority of the member
state.
D.
The Interstate Commission
shall keep accurate accounts of all receipts and disbursements.
The receipts and disbursements of the Interstate Commission shall
be subject to the audit and accounting procedures established under its
bylaws. However, all receipts and disbursements of funds
handled by the Interstate Commission shall be audited yearly by a
certified or licensed public accountant and the report of the audit
shall be included in and become part of the annual report of the
Interstate Commission.
ARTICLE XIV. MEMBER STATES,
EFFECTIVE DATE AND AMENDMENT
A.
Any state is eligible to become a member state.
B.
The compact shall become
effective and binding upon legislative enactment of the compact into
law by no less than 35 states. The effective date shall be
the
later of July 1, 2007,
or upon enactment of the compact into law by the 35th state.
Thereafter it shall become effective and binding as to any other
member state upon enactment of the compact into law by that state.
The executive heads of the state human services administration
with ultimate responsibility for the child welfare program of nonmember
states or their designees shall be invited to participate in the
activities of the Interstate Commission on a nonvoting basis prior to
adoption of the compact by all states.
C.
The Interstate Commission
may propose amendments to the compact for enactment by the member
states. No amendment shall become effective and binding on the
member states unless and until it is enacted into law by unanimous
consent of the member states.
ARTICLE XV. WITHDRAWAL AND DISSOLUTION
A.
Withdrawal.
1.
Once effective, the compact shall continue in force and remain binding
upon each and every member state; provided that a member state may
withdraw from the compact specifically repealing the statute which
enacted the compact into law.
2.
Withdrawal from this compact
shall be by the enactment of a statute repealing the same. The
effective date of withdrawal shall be the effective date of the repeal
of the statute.
3.
The withdrawing state shall
immediately notify the president of the Interstate Commission in
writing upon the introduction of legislation repealing this compact in
the withdrawing state. The Interstate Commission shall then notify
the other member states of the withdrawing state's intent
to withdraw.
4. The withdrawing state is
responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal.
5.
Reinstatement following withdrawal of a member state shall occur upon
the withdrawing state reenacting the compact or upon such later date as
determined by the members of the Interstate Commission.
B. Dissolution of compact.
1.
This compact shall dissolve
effective upon the date of the withdrawal or default of the member
state which reduces the membership in the compact to 1 member state.
2.
Upon the dissolution of this
compact, the compact becomes null and void and shall be of no further
force or effect, and the business and affairs of the Interstate
Commission shall be concluded and surplus funds shall be distributed in
accordance with the bylaws.
ARTICLE
XVI. SEVERABILITY AND CONSTRUCTION
A.
The provisions of this compact shall be severable, and if any phrase,
clause, sentence or provision is deemed unenforceable, the remaining
provisions of the compact shall be enforceable.
B. The provisions of this compact
shall be liberally construed to effectuate its purposes.
C. Nothing in this compact shall
be construed to prohibit the concurrent applicability of other interstate compacts to which the states are members
ARTICLE XVII. BINDING EFFECT
OF COMPACT AND OTHER LAWS
A.
Other laws.
1. Nothing herein prevents the
enforcement of any other law of a member state that is not inconsistent with this compact.
B. Binding effect of the compact.
1.
All lawful actions of the
Interstate Commission, including all rules and bylaws promulgated by
the Interstate Commission, are binding upon the member states.
2. All agreements between the
Interstate Commission and the member states are binding in accordance with their terms.
3. In the event any provision
of this compact exceeds the constitutional limits imposed
on the legislature of any member state, such provision shall be
ineffective to the extent of the conflict with the constitutional
provision in question in that member state.
ARTICLE
XVIII. INDIAN TRIBES
Notwithstanding
any other provision in this compact, the Interstate Commission may
promulgate guidelines to permit Indian tribes to utilize the compact to
achieve any
or all of the purposes of the compact as specified in Article I of this
compact. The Interstate Commission shall make reasonable efforts
to consult with Indian tribes in promulgating guidelines to reflect the
diverse circumstances of the various Indian tribes.
CREDIT(S)
57 Laws 1970, ch. 501; 70 Laws 1995, ch.
186, § 1, eff. July 10, 1995; 76 Laws 2008, ch. 218; 77
Laws 2009, ch. 163 , §§ 1-5, eff. July 16,
2009.
Codifications:31
Del.C. 1953, § 381
[FN1] Subsection scheme as in original
HISTORICAL AND STATUTORY NOTES
2008 Legislation
76 Laws 2008, ch. 218, § 2, provides:
"This
Act shall not be effective until Final Rules promulgated by the
Interstate Commission become effective. Until such time, the
existing subchapter VI shall remain
in full force and effect."
Technical corrections were made to conform with revisions made by the Delaware Code Revisors (2008).
CROSS
REFERENCES
Receiving child into State for adoption, see 13 Del.C. § 926.
LIBRARY REFERENCES
Infants
229.
States
6.
Westlaw Key Number Searches: 211k229; 360k6.
C.J.S. Infants §§ 43, 71 to 95.
C.J.S. States §§ 13, 67 to 71, 257.
RESEARCH REFERENCES
ALR Library
5 ALR 6th 193, Construction and Application of Interstate Compact on the Placement of Children.
NOTES
OF DECISIONS
In general
1
Due process of law
2
1. In general
Interstate
Compact on the Placement of Children (ICPC) should be read to encompass
placement of a dependent child with a non-custodial parent. 31
Del.C. § 381. Green
v. Division of Family Services, 864 A.2d 921 (2004). Infants 229
It
was appropriate to send juvenile, who was adjudicated delinquent for
rape and assault, to an out-of-state institution in order for him to
complete disposition that
placed him in a staff-secured, out-of-home treatment program;
equivalent facilities to meet juvenile's needs were not present in the
state, and juvenile did not face undue hardship by fact that he would be
from his home and family a traveling distance of five
or six hours by vehicle. 31 Del.C. § 381. In re Wilson, 789
A.2d 1234 (2001). Infants 229
2. Due process of law
Application
of Interstate Compact on
the Placement of Children (ICPC) to non-resident natural fathers who
were seeking custody of their children did not violate fathers' due
process rights, despite fathers' claim that they had no ability to
appeal the denial of their ICPC home studies; in fact,
fathers had statutory right to appeal those decisions in their home
state. 31 Del.C. § 381; West's V.C.A. § 16.1-227. Green v.
Division of Family Services, 864 A.2d 921 (2004). Constitutional
Law 4396; Infants 229
31 Del.C. § 381, DE ST TI 31 § 381
Current through 77 Laws 2010, chs.
1 - 454, excluding ch. 444. Revisions by
the
Delaware Code Revisors were unavailable at the time of
publication