'It's a big win for parents'
In a New London County child welfare case, the state Supreme Court has ruled that out-of-state parents who do not have physical custody of their children do not need to undergo a home study before they can take their kids out of state.
The 5-2 decision in the case known only as "In re Emoni W" could impact hundreds of Connecticut children each year, according to local attorneys who practice children's law.
The case originated in July 2010 when a Pennsylvania father came to the area to claim his two children after their mother was arrested on drug charges. The kids had been taken into state custody and were housed in a shelter.
New London attorney Don M. Hodgdon was appointed to represent the father, who could not afford an attorney. Prior to the mother's arrest, the children had stayed with the father regularly during school vacations and holidays.
"I made a claim that Dad is here and is ready, willing and able to receive his children," Hodgdon said during a phone interview. "They said, 'No.'"
Hodgdon made his claim in Juvenile Court in Waterford, where Judge John Driscoll ruled that the Interstate Compact on the Placement of Children applied to the father and that a study of the father's home home and suitability was required. The language in the compact addresses "the removal of foster and adoptive children from one state to the other" but does not mention parents.
Hodgdon appealed, but by the time the case was heard in January 2011, the home study had been conducted and the children had been turned over to their father. The children remained under protected supervision for six months after they arrived in Pennsylvania.
Hodgdon estimated that the children had spent eight or nine weeks in the shelter. Some states take months or years to conduct the home studies, he said.
"Dad was very happy," Hodgdon said. "He had his children back and there was no legal case."
The father allowed Hodgdon to continue the appeal, telling him he didn't want this to happen to any other families, Hodgdon said.
The state Appellate Court dismissed the case, writing that it was "moot," and Hodgdon appealed to the Supreme Court, claiming the circumstance was capable of being repeated. The high court took the case.
Several national children's organizations, law clinics and the state Office of the Chief Public Defender filed an amicus, or friend of the court, brief on behalf of Hodgdon's client.
"What motivates the children's advocacy organizations on this issue is that even a day away from your family, when you have a parent who is ready and willing and able to take you, is too long," said the brief's author, attorney Josh Gupta-Kagan of the Washington University Law School in St. Louis, Mo.
"Try explaining to a 10-year-old that because of some acronym they never heard of, they can't see their daddy, who they used to see every weekend, or every summer in Emoni W.'s case," Gupta-Kagan said.
The Supreme Court ruled that the Appellate Court improperly dismissed the case and that the trial court had improperly determined that the interstate compact applies to the noncustodial parents of children.
The court ruled that a parent is presumed fit to take custody of the children, but the judge has the discretion to make further inquiry.
"It's a big win for parents," said Lyme attorney Priscilla Hammond, who specializes in children's law.
Hammond said she sees about 12 to 15 similar cases each year in her own practice. In an estimated half of all cases, the other state denies the transfer of the children.
"It's all about funding," Hammond said. "If an indigent child goes to an indigent parent in another state, the state is going to say no."
The father in "Emoni W" declined a request for an interview, saying he wanted to keep the focus on the issue, Hodgdon said.
"The point is, parents are special and parents have fundamental rights," Hodgdon said. Across the country, applying the Interstate Compact to parents remains a controversial issue, and it's a 50-50 split, he said.
Assistant Attorney General Tammy Nguyen-O'Dowd had argued the case on behalf of the state. A spokesman for the attorney general's office said the office would not be commenting on the ruling.
Department of Children and Families Commissioner Joette Katz, formerly a Supreme Court justice, issued the following statement in response to a request for comment:
"As we have had several similar cases since I have been Commissioner, we are grateful that the Supreme Court has now provided us with guidance regarding the proper statutory interpretation of the Interstate Compact," Katz wrote. "We also thank the Court for recognizing that the Department of Children and Families has 'the authority and the responsibility to investigate whether the placement of a particular child with an out-of-state parent would be consistent with the public policy goals underlying the compact ...' and, in doing so, has preserved the tools we need to do our job. Accordingly, the only real implication is the additional cost to the State of Connecticut of securing out-of-state investigations since we can no longer rely on our sister states for that courtesy service."