To Be Argued By:

CHRISTINE GOTTLIEB
Time Requested: 20 Minutes
APL-2021-00098
Suffolk County Clerk’s Docket Numbers V-20828-17, V-20833-17,
V-20834-17, V-20836-17, V-20838-17

Court of Appeals
STATE OF NEW YORK

d
In the Matter of Custody/Visitation Proceeding
DAVLIN LALAND ,
—against—
Petitioner-Appellant,

SHAVONNE BOOKHART , SUFFOLK COUNTY

DEPARTMENT OF SOCIAL SERVICES ,
Respondents-Respondents.

BRIEF FOR PETITIONER-APPELLANT DAVLIN LALAND

[CONFIDENTIAL]

SCOTT EISMAN CHRISTINE GOTTLIEB

ELENA HADJIMICHAEL NYU FAMILY DEFENSE CLINIC ,
FRESHFIELDS BRUCKHAUS WASHINGTON SQUARE LEGAL
DERINGER US LLP SERVICES
601 Lexington Avenue, 31st Floor 245 Sullivan Street, 5th Floor
New York, New York 10022 New York, New York 10012
Telephone: (212) 277-4000 Telephone: (212) 998-6693
Facsimile: (646) 521-5778 Facsimile: (212) 995-4031
Attorneys for Petitioner-Appellant Davlin Laland

August 12, 2021

 STATEMENT OF RELATED LITIGATION

Petitioner Davlin Laland identifies the following proceedings as

related to this case:

• Matter of Adrianna Bookhart, Docket Nos. NN-20257-12/16B,

B-09097-19.
 TABLE OF CONTENTS

Statement of related litigation ................................................................... i

Table of authorities .................................................................................. iii
Preliminary statement .............................................................................. 1
Jurisdictional statement ........................................................................... 5
Question presented .................................................................................... 6
Statement of the case ................................................................................ 6
A. The Interstate Compact on the Placement of Children ........ 6
B. Davlin Laland’s custody petition .......................................... 11
Argument ................................................................................................. 14
The Compact does not apply when out-of-state parents seek
custody of their own children .................................................................. 14
A. The Compact’s plain language bars its application to
parents. .................................................................................. 15
1. The text of the Compact limits its application to
foster care and pre-adoptive placements. ................... 16
2. The Second Department misread this Court’s
precedent. ..................................................................... 21
3. Neither a regulation nor liberal construction can
justify rewriting the Compact’s text. .......................... 23
B. The Second Department’s reading of the Compact
contradicts its history and purpose. ..................................... 26
C. The structure of New York’s child-protection regime
confirms that the Compact does not apply to parents. ....... 29
D. The Court should construe the Compact as not
applying to parents in order to avoid rendering it
unconstitutional. ................................................................... 34
1. Interpreting the Compact to apply to parents
would violate substantive due process. ....................... 35
2. Interpreting the Compact to apply to parents
would violate procedural due process. ........................ 41
Conclusion ................................................................................................ 43

ii
 TABLE OF AUTHORITIES

Cases Page(s)

Arkansas Dept. of Human Servs. v. Huff,

347 Ark. 553 (2002) ...................................................................... passim

Department of Children & Families v. Benway,

745 So. 2d 437 (Fla. Ct. App. 1999) ..................................................... 23

Division of Youth & Family Servs. v. K.F.,

353 N.J. Super. 623 (App. Div. 2002) .................................................. 21

Duchesne v. Sugarman,
566 F.2d 817 (2d Cir. 1977) ................................................................. 34

Green v. Div. of Family Servs.,

864 A.2d 921 (Del. 2004) ................................................................ 21, 23

In re Alexis O.,
157 N.H. 781 (2008) ..................................................................... passim

In re Emoni W.,
305 Conn. 723 (2012) ................................................................... passim

In re C.R.-A.A.,
521 S.W.3d 893 (Tex. App. 2017) ........................................................ 24

In re D.B.,
43 N.E.3d 599 (Ind. Ct. App. 2015), transfer denied, 41
N.E. 3d 691 (Ind. 2015) ........................................................................ 20

In re Dependency of D.F.-M.,
157 Wash. App. 179 (2010), review denied, 170 Wash. 2d
1026 (2011) ..................................................................................... 21, 24

In re Rholetter,
162 N.C. App. 653 (2004) ..................................................................... 21

In re R.S.,
470 Md. 380 (2020) ............................................................. 17, 20, 21, 24

iii
In re S.R.C.-Q,
52 Kan. App. 2d 454 (2016) ........................................................... 21, 24

Mathews v. Eldridge,
424 U.S. 319 (1976) .............................................................................. 41

Matter of Aaron J.,

80 N.Y.2d 402 (1992)...................................................................... 31–32

Matter of Albany Law School v. New York State Off. of

Mental Retardation & Dev. Disabilities,
19 N.Y.3d 106 (2012)...................................................................... 29–30

Matter of Alexus M. v. Jenelle F.,

91 A.D.3d 648 (2d Dep’t 2012) ............................................................. 22

Matter of Bennett v. Jeffreys,

40 N.Y.2d 543 (1976)............................................................................ 35

Matter of County of Chemung v. Shah,

28 N.Y.3d 244 (2016)............................................................................ 41

Matter of Emmanuel B. (Lynette J.),

175 A.D.3d 49 (1st Dep’t 2019) .................................................... passim

Matter of Faison v. Capozello,

50 A.D.3d 797 (2d Dep’t 2008) ............................................................. 22

Matter of Jacob,
86 N.Y.2d 651 (1995)............................................................................ 34

Matter of Jamie J. (Michelle E.C.),

30 N.Y.3d 275 (2017)................................................................ 30, 32, 35

Matter of Keanu Blue R.,

292 A.D.2d 614 (2d Dep’t 2002) ........................................................... 22

Matter of Lighthouse Pointe Prop. Assoc. LLC v. New York

State Dept. of Envtl. Conservation,
14 N.Y.3d 161 (2010)............................................................................ 24

iv
Matter of Marie B.,
62 N.Y.2d 352 (1984)................................................................ 37, 38, 40

Matter of Michael B.,

80 N.Y.2d 299 (1992)............................................................................ 30

Matter of Richmond Constructors v. Tishelman,

61 N.Y.2d 1 (1983)................................................................................ 26

Matter of Shaida W.,

85 N.Y.2d 453 (1995).................................................................... passim

Matter of Tumari W.,

65 A.D.3d 1357 (2d Dep’t 2009) ..................................................... 21, 22

McComb v. Wambaugh,
934 F.2d 474 (3d Cir. 1991) ......................................................... passim

Nicholson v. Scoppetta,
3 N.Y.3d 357 (2004)............................................................ 30, 31, 33, 36

Parham v. J.R.,
442 U.S. 584 (1979) .............................................................................. 37

People v. Correa,
15 N.Y.3d 213 (2010)............................................................................ 34

People v. Holz,
35 N.Y.3d 55 (2020).............................................................................. 16

People v. Ryan,
82 N.Y.2d 497 (1993)............................................................................ 16

Reno v. Flores,
507 U.S. 292 (1993) .............................................................................. 36

Santosky v. Kramer,
455 U.S. 745 (1982) .................................................................. 35, 37, 41

Southerland v. City of New York,

680 F.3d 127 (2d Cir. 2012) ................................................................. 35

v
Stanley v. Illinois,
405 U.S. 645 (1972) ...................................................................... passim

State Dept. of Economic Security v. Leonardo,

200 Ariz. 74 (Ct. App. 2001) ................................................................ 23

Tara S. v. Superior Court,

13 Cal. App. 4th 1834 (1993) ............................................................... 21

Troxel v. Granville,
530 U.S. 57 (2000) .......................................................................... 34–35

U.S. Steel Corp. v. Multistate Tax Commn.,

434 U.S. 452 (1978) ................................................................................ 6

Washington v. Glucksberg,
521 U.S. 702 (1997) .............................................................................. 36

Constitutional Provisions

U.S. Const. amend. XIV, § 1............................................................... 35, 36

Statutes

CPLR 5602 .................................................................................................. 5

Family Court Act § 1017 .............................................................. 32, 33, 41

Family Court Act § 1027 .......................................................................... 31

Family Court Act § 1028 .......................................................................... 31

Family Court Act § 1052 .................................................................... 19, 41

Family Court Act § 1035 .......................................................................... 32

Family Court Act § 1054 .......................................................................... 19

Family Court Act § 1055 .......................................................................... 19

Family Court Act § 1057 .......................................................................... 19

vi
Social Services Law § 374-a

Art. 1 ..................................................................................................... 16

Art. 2 ..................................................................................... 9, 14, 16, 24

Art. 3 ............................................................................................. passim

Art. 4 ............................................................................................... 17, 20

Art. 5 ............................................................................................. passim

Art. 6 ..................................................................................................... 17

Art. 7 ..................................................................................................... 23

Art. 8 ........................................................................................... 9, 17, 24

Art. 10 ............................................................................................. 20, 25

Social Services Law § 384-b ..................................................................... 30

Social Welfare Law (former) § 371........................................................... 27

Other Authorities

American Pub. Human Servs. Assn., Interstate Compact on

the Placement of Children (ICPC): A Pathways Policy
Brief (2013), https://tinyurl.com/yhv8y3dd ......................................... 38

The American Heritage Dictionary of the English Language

(1st ed. 1969) ........................................................................................ 25

Assocation of Adm’rs of the Interstate Compact on the

Placement of Children, Regulation No. 3 (2011),
https://tinyurl.com/yhv8y3dd ........................................................ 24, 25

Congressional Research Service, Interstate Compact on the

Placement of Children: ICPC 1 (2003),
http://tiny.cc/wqthuz ........................................................................ 7, 21

vii
Compact Draftsman’s Notes, reprinted in Roberta Hunt,
Obstacles to Interstate Adoption (1972),
http://tiny.cc/jfshuz......................................................................... 10, 29

Bernadette W. Hartfield, The Role of the Interstate Compact

on the Placement of Children in Interstate Adoption, 68
Neb. L. Rev. 292 (1989) .................................................................... 8, 26

Bill Jacket for ch. 567 (2015)

Sponsor’s Mem. .................................................................................... 33

Bill Jacket for ch. 708 (1960)

Budget Rep. on Bills, Senate Print No. 4217...................................... 28

Dept. of Social Welfare, Form of Mem. to Accompany

Comments on Bills Before the Governor for Executive
Action ......................................................................................... 10, 11

Mem. of Joint Legis. Comm. on Interstate Cooperation .............. 10, 27

Rep. of the N.Y. Joint Legis. Comm. on Interstate

Cooperation ................................................................................ 26–27

Connie E. Eiseman, Recent Decision, In re

Adoption/Guardianship No. 3598,
58 Md. L. Rev. 920 (1999) ................................................................................................... 8

Council of State Govts., Suggested State Legislation—

Program for 1961 (1960), reprinted in Roberta Hunt,
Obstacles to Interstate Adoption (1972),
http://tiny.cc/jfshuz........................................................................... 8, 26

Josh Gupta-Kagan, In Re Sanders and the Resurrection of

Stanley v. Illinois, 5 Cal. L. Rev. Circuit 383 (2014) .................... 40, 42

Matthew E. Christoph, Why Massachusetts Should Not

Relegate Parents to “Legal Strangers”: A Survey of the
Myriad Interpretations of the ICPC, 35 W. New Eng. L.
Rev. 77 (2013) ......................................................................................... 8

viii
Merriam-Webster Online Dictionary, http://tiny.cc/tqthuz
(last visited Aug. 7, 2021) .................................................................... 25

Merril Sobie, 2018 Supp. Practice Commentaries,

McKinney’s Cons. Laws of N.Y., Family Court Act § 651 .................. 38

Merril Sobie, 2014 Supp. Practice Commentaries,

McKinney’s Cons. Laws of N.Y., Family Court Act § 1017 ................ 38

Merril Sobie, 2019 Supp. Practice Commentaries,

McKinney’s Cons. Laws of N.Y., Family Court Act § 1017 ................ 32

Merril Sobie, 2019 Supp. Practice Commentaries,

McKinney’s Cons. Laws of N.Y., Family Court Act § 1052 ................ 33

Signing Mem. Filed with Senate Bill, Introductory No. 2262,

reprinted in State of New York, Public Papers of Nelson A.
Rockefeller ............................................................................................ 11

Vivek S. Sankaran, Foster Kids in Limbo: The Effects of the

Interstate Compact on Children in Foster Care 33 Child L.
Prac. 140 (2014).............................................................................. 39, 40

Vivek S. Sankaran, Out of State and Out of Luck: The

Treatment of Non-Custodial Parents Under the Interstate
Compact on the Placement of Children, 25 Yale L. & Pol’y
Rev. 63 (2006) ........................................................................... 38, 41, 42

Vivek S. Sankaran & Christopher Church, Easy Come, Easy

Go: The Plight of Children Who Spend Less Than 30 Days
in Foster Care, 19 U. Pa. J.L. & Soc. Change 207 (2015) ................... 31

ix
 PRELIMINARY STATEMENT

This case began when New York officials took a seven-month-old

girl into custody after her mother allegedly neglected her. The infant’s

father, who lived in North Carolina, came to New York to retrieve her.

He informed the Department of Social Services and Family Court that

there was no need for her to be in foster care; if she could not live with

her mother, he would take care of her. He was not allowed to do so. No

one in New York or North Carolina accused the father, Petitioner Davlin

Laland, of neglect or said he was incapable of caring for his daughter.

And yet she remained in foster care. It has been nine years. Mr. Laland’s

daughter, Adrianna, has grown up with no memory of a home with her

parents. This tragedy was entirely avoidable. Nothing in the law

mandates or permits this outcome, which is contrary to New York’s

longstanding commitment to protecting parent–child relationships.

Mr. Laland was denied custody of his daughter solely because

North Carolina did not approve an application filed under the Interstate

Compact on the Placement of Children, and Family Court, Suffolk

County, believed it could not consider a custody petition from an out-of-

state parent unless the parent’s State of residence approved such an

application. The Second Department affirmed the dismissal of Mr.

Laland’s custody petition, holding that the Compact applies to parents

and places authority for custody decisions about New York children who

have an out-of-state parent in the hands of administrative officials in the

State where the parent resides. That holding violates the Compact’s plain

language and New York law.

First, the decision below contradicts the Compact’s plain text. The

States and the District of Columbia entered into the Compact to regulate

the placement of children in out-of-state foster care and pre-adoptive

homes. The Compact forbids a State from placing a child in foster care or

for adoption in another State unless the receiving State approves the

placement. The Compact specifically defines “placement” as the

placement of children in foster care and pre-adoptive homes. Granting

custody of a child to her parent is not the type of “placement” to which

the Compact says it applies. And nothing else in the Compact so much as

suggests that the Compact applies to orders granting parents custody of

their own children. Given that plain language, it is unsurprising that

nearly every state high court and the only federal appellate court to

consider the issue—as well as the First Department—have held that the

2
Compact does not apply when children are sent to live with an out-of-

state parent.

The decision below sidesteps the plain language altogether. Instead,

the Second Department relied on its own precedent positing that the

Compact applies to parents because this Court said so in Matter of

Shaida W., 85 N.Y.2d 453 (1995). But that is not what Shaida W. said.

There, this Court applied the Compact to a placement of children in foster

care with their grandmother. Shaida W. did not even mention parental

custody. The Second Department thus erred in relying on it.

Second, the decision below clashes with the Compact’s legislative

history and purpose. The Compact’s drafting history shows that it was

meant to apply to foster care and adoptions. The history of New York’s

vote to sign on to the Compact likewise reveals that the Legislature

intended for the Compact to apply only to foster care and adoptions. This

makes sense. At the time, States feared that children sent across state

lines ostensibly for foster care or adoption were being used for child labor

or sold on the black market. Those concerns fall away when children are

sent to live with their parents, whom the law presumes to be fit to care

for their children.

3
 Third, the overall structure of New York’s child-protection

statutes—which the Court should construe together with the Compact—

confirms that the Legislature would not have intended the Compact to

apply to parents seeking custody. Those statutes, found in the Family

Court Act and Social Services Law, presume that it is in children’s best

interests to be raised by their parents. They therefore allow children to

be removed from their parents only when the children are in imminent

risk of danger. Even then, a court must consider alternative options to

family separation. Applying the Compact to parents would contradict this

statutory scheme. Doing so would mean starting from the presumption

that parents are unfit and so cannot obtain custody of their children until

a receiving State approves. Under this reading, receiving States could—

and in fact do—deny parents custody for a wide range of reasons other

than imminent risk. Applying the Compact thus disrupts New York’s

child-protection system to the detriment of children and disables New

York judges from serving children and families’ interests. Rather than

construing it to do so, the Court should harmonize the Compact with

other state statutes covering the same subject matter.

4
 Finally, interpreting the Compact not to apply to parents seeking

custody of their own children avoids rendering it unconstitutional. If the

Compact applied to parents, it would violate parents’ and children’s

rights to due process. As the U.S. Supreme Court and this Court have

long held, substantive due process encompasses parents’ right to raise

their children and children’s right to be raised by their parents. Applying

the Compact to parents transgresses those rights: it allows States to keep

parents and children separated without either a compelling state interest

or narrow tailoring, because nothing in the Compact requires a finding of

parental misconduct before breaking up a family. Applying the Compact

to parents also violates procedural due process by failing to give parents

notice and an opportunity to be heard before denying them the right to

raise their children.

This Court should apply the Compact as written, as intended, as it

fits into New York’s overall child-protective scheme, and in a way that

avoids constitutional infirmities. It should reverse the decision below.

JURISDICTIONAL STATEMENT

The Court of Appeals has jurisdiction over this matter under CPLR

5602(a)(1)(i) because this Court granted leave to appeal. A2. The question

5
presented was decided by Family Court, A85–86, and the Second

Department, A3–4, and is preserved for this Court’s review by Mr.

Laland’s arguments in support of his custody petition, A56, 68–69, and

on appeal, App. Div. Brief for Petitioner-Appellant 8–9.

QUESTION PRESENTED

Does the Interstate Compact on the Placement of Children apply

when an out-of-state parent seeks custody of his or her own child?

STATEMENT OF THE CASE

A. The Interstate Compact on the Placement of Children

Drafting of the Compact. The Interstate Compact on the

Placement of Children is an agreement among the fifty States and the

District of Columbia. Interstate agreements generally “provide[] a means

through which the sovereign states c[an] resolve conflicts, such as

boundary disputes, among themselves.” McComb v. Wambaugh, 934 F.2d

474, 479 (3d Cir. 1991). Because the Compact is not “directed to the

formation of any combination tending to the increase of political power in

the States,” it did not require congressional approval. U.S. Steel Corp. v.

Multistate Tax Commn., 434 U.S. 452, 471 (1978) (quotation marks

6
omitted). It is thus a non-federal agreement and is “construed as state

law” in each adopting State. McComb, 934 F.2d at 479.

The purpose of the Compact was to provide “a uniform legal

framework for the placement of children” across state lines “in foster

homes and/or adoptive homes.” Congressional Research Serv., RL32070,

Interstate Compact on the Placement of Children: ICPC 1 (2003),

http://tiny.cc/wqthuz. Before the Compact was drafted, some States’ laws

governing interstate placements failed “to provide adequate protection

for children” who were “import[ed] and export[ed]” for adoption or foster

care. Id. at 3.

Seeking to address the concerns about inadequate oversight and to

expand placement options, “a group of East Coast social service

administrators met” in the 1950s “to informally study” how best to move

children across state lines for placement in “foster care and/or adoption.”

Id. They concluded that “a State’s jurisdiction ended at its borders”—

meaning that a sending State could not ensure proper care and

supervision in the receiving state—and that “a State could only compel

an out-of-state agency or individual to discharge its obligations toward a

child through a compact.” Id. As a result, the Council of State

7
Governments proposed the Compact to provide “procedures for the

interstate placement of children (either by public agencies or by private

persons or agencies) when such placement is for foster care or as a

preliminary to a possible adoption.” Council of State Govts., Suggested

State Legislation—Program for 1961 (1960), reprinted in Roberta Hunt,

Obstacles to Interstate Adoption 49, 49 (1972), http://tiny.cc/jfshuz.1

The Compact thus aims to safeguard children placed across state

lines and to “prevent States from unilaterally ‘dumping’ their foster care

responsibilities on other jurisdictions.” Matter of Shaida W., 85 N.Y.2d

453, 459 (1995). It requires a “sending agency” to notify a receiving State

when it plans to place a child in foster or pre-adoptive care in the

receiving state. Art. III(b). The receiving State will then study whether

“the proposed placement . . . appear[s] to be [in] the interests of the child.”

1 Accord Bernadette W. Hartfield, The Role of the Interstate Compact on the

Placement of Children in Interstate Adoption, 68 Neb. L. Rev. 292, 295 (1989)
(“The [Compact] . . . focuses on child welfare—both foster care and adoption.”);
Matthew E. Christoph, Why Massachusetts Should Not Relegate Parents to
“Legal Strangers”: A Survey of the Myriad Interpretations of the ICPC, 35 W.
New Eng. L. Rev. 77, 79 (2013) (“The [Compact’s] purpose is to offer protection
and services to children who are placed across state lines for foster care or
preliminary to adoption”); Connie E. Eiseman, Recent Decision, In re
Adoption/Guardianship No. 3598, 58 Md. L. Rev. 920, 928 (1999) (“The goal
was to create procedures that would facilitate interstate adoptions, thereby
increasing the number of acceptable placements for children.”).

8
Art. III(d). If the receiving State informs the sending agency that the

placement is approved, the sending agency may then place the child in

the receiving State. Id. The sending State’s agency retains jurisdiction

over and financial responsibility for the child. Art. V(a)–(b).

The Compact contains two important limitations relevant to this

case. First, the Compact applies only to “placement in foster care or as a

preliminary to possible adoption.” Art. III(a). The term “placement” is

specifically defined in the Compact to mean “the arrangement for the care

of a child in a family free or boarding home or in a child-caring agency or

institution.” Art. II(c). Second, out of concern that relatives leaving their

children with other relatives could be swept up in the definition of

“sending agency”—which includes “a person” who “sends, brings, or

causes to be sent or brought any child to another state,” art. II(d)—the

Compact’s drafters exempted them. The Compact thus “shall not apply

to . . . [t]he sending or bringing of a child into a receiving state by his

parent, step-parent, grandparent, adult brother or sister, adult uncle or

aunt, or his guardian and leaving the child with any such relative or non-

agency guardian in the receiving state.” Art. VIII(a). As the drafting

notes explain, this carve-out “protect[s] the social and legal rights of the

9
family” and “recognize[s] that regulation is desirable only in the absence

of adequate family control or in order to forestall conditions which might

produce an absence of family control.” Compact Draftsman’s Notes,

reprinted in Hunt, supra, at 42, 44, http://tiny.cc/jfshuz.

New York’s adoption of the Compact. New York was the first

State to adopt the Compact. Before adopting the Compact, New York

forbade out-of-state placements of children into foster care and adoptive

homes out of a fear the children “were being impressed into undesirable

labor by ruthless contractors.” Mem. of Joint Legis. Comm. on Interstate

Cooperation at 1, in Bill Jacket for ch. 708 (1960), at 13. That protective

measure had “restrict[ed] the resources available to New York for the

proper placement of children in foster care and as a possible preliminary

to adoption.” Id. at 2. The Legislature solved this problem by adopting

the Compact. It viewed the Compact as a way to provide for interstate

foster and adoptive placements, thereby “increas[ing] the opportunities

for the making of good placements” while ensuring child safety. Id. The

Compact expanded access to foster and adoptive placements while

“provid[ing] an effective means of controlling interstate placement of

babies for adoption by black marketeers.” Dept. of Social Welfare, Form

10
of Mem. to Accompany Comments on Bills Before the Governor for

Executive Action at 3, in Bill Jacket ch. 708 (1960), at 25.

When the legislation adopting the Compact was transmitted to

Governor Rockefeller for signing, it was accompanied by numerous

memoranda from state agencies and child-welfare organizations

explaining that the Compact regulated the sending of children out of

state “for placement in foster care” and “for the purpose of adoption.” E.g.,

id. at 1. Governor Rockefeller approved New York’s entry into the

Compact, which is codified as Social Services Law § 374-a. Signing Mem.

Filed with Senate Bill, Introductory No. 2262, reprinted in State of New

York, Public Papers of Nelson A. Rockefeller 514–15 (1960).

B. Davlin Laland’s custody petition

Adrianna Bookhart was born in April 2012. Her father, Petitioner

Davlin Laland, lived in North Carolina. Her mother, Shavonne Bookhart,

lived in New York. In November 2012, the Suffolk County Department of

Social Services removed Adrianna from Ms. Bookhart’s custody for

inadequate guardianship. A85. Ms. Bookhart admitted to neglecting

Adrianna, and the County placed Adrianna into foster care. Id. The

Department did not make any allegations against Mr. Laland.

11
 Mr. Laland exercised his right to appear in the neglect proceeding

and asked for custody of his daughter. In 2013, Family Court ordered

that an application be made to North Carolina under the Interstate

Compact on the Placement of Children to allow Adrianna to live with Mr.

Laland. See App. Div. Brief for Attorney for the Children 3; App. Div.

Brief for Petitioner-Appellant 3. That application was denied. Still, Mr.

Laland continued to express his desire to obtain custody and made trips

to New York to visit Adrianna. A39, 49–50, 59. Mr. Laland saw his

daughter repeatedly until September 2017, when the caseworker became

unavailable, A33, and he continued to apply for additional visits, A49–50,

59.

Despite Mr. Laland’s repeated requests to have Adrianna

discharged to live with him, she remained in foster care. When Family

Court informed Mr. Laland in 2017 that he could petition for custody of

Adrianna, he promptly did so. A29. Mr. Laland represented that he was

financially stable, had housing, and could meet Adrianna’s needs. A33.

But that was to no avail, because Family Court dismissed the petition

without a hearing, based solely on the lack of an approved application

under the Compact. Id.

12
 The Second Department affirmed. A3–4. Adopting the same

reasoning as Family Court, the Second Department explained that the

“provisions of the [Compact] apply” when “a child is in the custody of a

child protective agency, and a parent living outside of New York petitions

for custody of the child.” A4. The Second Department concluded that

Family Court “could not grant the father's petitions for custody absent

approval from the relevant North Carolina authority.” Id.

After the Second Department’s decision, Mr. Laland filed a new

custody petition, and North Carolina approved Mr. Laland’s renewed

application under the Compact. Mr. Laland has since withdrawn that

custody petition without prejudice while he challenges a petition to

terminate parental rights filed against him by the Department of Social

Services in 2019. Although the termination petition alleges that Mr.

Laland abandoned his daughter, he was actively seeking custody of her

at that time and is defending the petition on that ground.

Mr. Laland also moved in this Court for leave to appeal the Second

Department’s decision, contending that even if his case was moot, the

mootness exception would apply. See Mot. for Leave to Appeal 13–15.

Over Respondents’ mootness objections, this Court granted leave to

13
appeal on the issue of whether a parent’s petition for custody can be

denied based solely on the lack of an approved application under the

Compact.

ARGUMENT

THE COMPACT DOES NOT APPLY WHEN OUT-OF-STATE

PARENTS SEEK CUSTODY OF THEIR OWN CHILDREN

The question presented in this case is a matter of straightforward

statutory interpretation: whether the Interstate Compact on the

Placement of Children applies when an out-of-state parent seeks custody

of his or her own child. The answer is no.

The statutory text says nothing about regulating parents’ petitions

for custody. Quite the contrary, the Compact says that it applies to

“placement in foster care or as a preliminary to possible adoption.” Art.

III(a). And the Compact defines “placement” as “the arrangement for the

care of a child in a family free or boarding home or in a child-caring

agency or institution.” Art. II(c). Given that the plain meaning of this

language does not include sending a child to live with an out-of-state

parent, many other States’ courts have concluded that the Compact does

not apply to parents. The courts below did not engage with the plain

language of the Compact at all, but instead relied on a line of case law

14
that misreads this Court’s decision in Shaida W.—a decision about the

placement of a child in foster care, not with an out-of-state parent. Other

state courts that have applied the Compact to parents likewise ignored

the plain language, relying instead on a regulation and on the Compact’s

direction that it be construed liberally. But neither a regulation nor a

broad construction can overcome the statute’s plain language.

That plain-language conclusion finds extratextual support too.

First, the history of the drafting and New York’s passage of the Compact

confirm that the Compact was intended to cover placement of children

for foster care and adoption—not custody petitions by parents. Second,

New York’s other child-protective statutes, which should be analyzed

together with the Compact, reflect an extreme reluctance to interfere

with parent–child relationships and a commitment to keeping children

with parents except upon specific showings of parental unfitness. Finally,

the canon of constitutional avoidance requires reading the Compact to

preserve parents’ and children’s due process rights to family integrity.

A. The Compact’s plain language bars its application to

parents.

The Compact’s language compels the conclusion that it does not

apply to parents seeking custody of their own children. In construing the

15
Compact, the Court must “give effect to the plain meaning of the words.”

People v. Holz, 35 N.Y.3d 55, 59 (2020) (quotation marks omitted). The

Court’s role is “not to pass on the wisdom of the statute or any of its

requirements, but rather to implement the will of the Legislature as

expressed in its enactment.” People v. Ryan, 82 N.Y.2d 497, 502 (1993).

Applying those bedrock principles, the Court should reverse the decision

below.

1. The text of the Compact limits its application to

foster care and pre-adoptive placements.

At the outset, the Compact makes clear that it has nothing to do

with decisions about parents obtaining custody. The Compact starts by

stating that its “purpose” is to govern “the interstate placement of

children.” Art. I. By highlighting “placement” as its purpose, the Compact

shows that it is “intended only to govern placing children in substitute

arrangements for parental care, such as foster care or adoption.”

Arkansas Dept. of Human Servs. v. Huff, 347 Ark. 553, 563 (2002). The

Compact defines “placement” to mean “the arrangement for the care of a

child in a family free or boarding home or in a child-caring agency or

institution.” Art. II(d). The terms in that definition refer in their

ordinary usage to “nonparental residential arrangements that provide

16
children with the kind of care usually received from parents.” In re R.S.,

470 Md. 380, 404 (2020) (quotation marks omitted). Thus, the child

“placement” the Compact covers “does not [include] care for a child by

his or her natural parent.” In re Alexis O., 157 N.H. 781, 787 (2008).

The Compact’s other articles reinforce this conclusion. Almost every

Compact article refers to “placement.”2 Article III, which the courts below

relied on here, is no different—and in fact contains perhaps “[t]he most

significant and . . . determinative language” showing that the Compact

does not apply to parents seeking custody. McComb, 934 F.2d at 480.

That article bars a “sending agency” from allowing a child to be sent to

another State “for placement in foster care or as a preliminary to possible

adoption” unless the sending agency complies with Compact and

statutory requirements. Art. III(a). And it allows a child to be sent into

the receiving State only after that State gives notice that “the proposed

2 Compact art. IV (“The sending . . . of a child in violation of the terms of this

compact shall constitute a violation of the laws respecting the placement of
children . . . .”); art. V(a) (“The sending agency shall continue to have financial
responsibility . . . during the period of the placement.”); art. VI (“[N]o such
placement shall be made unless the child is given a court hearing . . . .”); art.
VIII (“This compact shall not apply to . . . [a]ny placement . . . pursuant to any
other interstate compact . . . .”); art. IX (“Withdrawal of a party state shall not
affect the rights . . . of any sending agency therein with respect to a
placement . . . .”).

17
placement does not appear to be contrary to the interests of the child.”

Art. III(d) (emphasis added). As other appellate courts have recognized,

article III’s “ordinary meaning . . . does not encompass placements of

children with a noncustodial parent.” In re Emoni W., 305 Conn. 723, 734

(2012); accord, e.g., Huff, 347 Ark. at 562.

The Compact’s jurisdictional provision, article V, provides even

more textual support for that conclusion. Consistent with the intent of

the Compact to prevent states from “‘dumping’ their foster care

responsibilities on other jurisdictions,” Shaida W., 85 N.Y.2d at 459, the

jurisdictional provision requires a sending agency to “retain jurisdiction

over the child,” art. V(a). As part of that retention of jurisdiction, the

Compact gives the sending agency “financial responsibility for support

and maintenance of the child during the placement.” Id. Bestowing that

responsibility on the State would make no sense in the parental-custody

context. States do not enjoy a roving mandate to oversee parents and

children in their daily lives. Instead, when a court grants custody to a

parent under Family Court Act article 6, that order “shall conclude” the

18
court’s jurisdiction. Family Court Act § 1055-b(d). 3 And the Compact

itself acknowledges that the sending State’s jurisdiction ends if a parent-

child relationship is established because “the child is adopted.” Art. V(a).

The upshot is that because parents have the right and duty to support

their children, government supervision and support is no longer

necessary when parents have custody. Construing the Compact as

applying to parental custody would therefore “result in the anomalous

situation of imposing a financial obligation upon a sending state that

supersedes parents’ duty to support their children.” McComb, 934 F.2d

at 480; accord Emoni W., 305 Conn. at 738.

Nor do the Compact’s few references to parents suggest that the

Compact applies to children sent to live with out-of-state parents. The

word “parent” appears just four times in the Compact: (1) in a provision

3 The Family Court Act spells out the dispositions available in a child-protective
proceeding in § 1052(a). The dispositional options include placement in foster
care, release to a parent with supervision, and an order of custody to a parent
under article 6. Family Court Act § 1052(a); see also §§ 1054, 1055, 1055-b,
1057. The statute is explicit that an order granting custody of the child to a
parent “shall not be combined with any other disposition under this
subdivision.” § 1052(a). Here, Mr. Laland sought a custody order under article
6. Such an order “shall conclude the court’s jurisdiction over the proceeding
held pursuant to [article 10 of the Family Court Act].” § 1055-b(d). Thus,
granting Mr. Laland custody would have ended Family Court jurisdiction over
Adrianna, rendering meaningless the Compact’s language requiring the
sending State to maintain jurisdiction and financial responsibility for the child.

19
regarding required notice to a parent of delinquency proceedings, art. IV;

(2) in a provision requiring notice to an agency of the names of parents of

foster or pre-adoptive children, art. III(a)(2); (3) in a reference to

“adoptive parent[s],” art. X(11)(a); and (4) in a section delineating

situations in which the Compact does not apply, article VIII(a); supra p.

9–10. None of these provisions purports to regulate parents’ applications

for custody.

In short, the textual evidence that the Compact does not apply to

parental reunification is overwhelming. It thus comes as no surprise that

many state courts and the only federal appellate court to address the

issue have agreed that the Compact “quite plainly provides that it applies

only to placement in foster care or a preadoptive home,” and a “biological

parent is neither of these.” In re D.B., 43 N.E.3d 599, 604 (Ind. Ct. App.

2015), transfer denied, 41 N.E. 3d 691 (Ind. 2015); accord R.S., 470 Md.

at 403; Emoni W., 305 Conn. at 734–36; Alexis O., 157 N.H. at 787; Huff,

347 Ark. at 562.4 Especially notable is the consensus of a majority of state

4 See also Matter of Emmanuel B. (Lynette J.), 175 A.D.3d 49, 56 (1st Dep’t 2019);
In re S.R.C.-Q, 52 Kan. App. 2d 454, 460 (2016); In re Dependency of D.F.-M.,
157 Wash. App. 179, 190–91 (2010), review denied, 170 Wash. 2d 1026 (2011);
In re Rholetter, 162 N.C. App. 653, 664 (2004); Division of Youth & Family
Servs. v. K.F., 353 N.J. Super. 623, 634 (App. Div. 2002); Tara S. v. Superior
Court, 13 Cal. App. 4th 1834, 1838 (1993); McComb, 934 F.2d at 480.

20
high courts—all but one of which has declined to apply the Compact to

out-of-state parents5—in an area where the importance of providing a

“uniform legal framework” has been recognized. Emmanuel B.,

175 A.D.3d at 56 (quoting Congressional Research Serv., supra, at 1).

This Court should follow suit.

2. The Second Department misread this Court’s

precedent.

Despite its plain language, the Second Department held that the

Compact required denying Mr. Laland’s custody petition until North

Carolina approved his application. A4. The Second Department reached

that conclusion by relying on its own precedent, which misread this

Court’s decision in Shaida W., 85 N.Y.2d 453. See A4 (citing, e.g., Matter

of Tumari W., 65 A.D.3d 1357, 1360 (2d Dep’t 2009)).

In Tumari W., the Second Department read Shaida W. as

“apply[ing] the [Compact] to a noncustodial parent.” 65 A.D.3d at 1360.

But Shaida W. did no such thing. Instead, it considered whether the

Compact applied when children were placed in kinship foster care with

5 Compare R.S., 470 Md. at 403; Emoni W., 305 Conn. at 733; Alexis O., 157 N.H.
at 789; Huff, 347 Ark. at 563, with Green v. Div. of Family Servs., 864 A.2d 921,
928 (Del. 2004).

21
their grandmother in California. Shaida W. straightforwardly concluded

that the Compact applied, reasoning that “[w]hen the children relocated

to California, they were in the ‘custody’ of the New York City Department

of Social Services pursuant to a Family Court order” and “[t]he

Department of Social Services was the agency that was still responsible

for their care.” 85 N.Y.2d at 460. In other words, the children in Shaida

W. were in foster care in the receiving State—one of the two placement

categories (the other being placements for adoption) covered by the

Compact’s plain language. See supra pp. 16–19.

Tumari W. thus “fundamental[ly] misread[]” Shaida W., Emmanuel

B., 175 A.D.3d at 58, and that fundamental misreading affected a line of

precedent, including the decision below. See A4 (citing Matter of Alexus

M. v. Jenelle F., 91 A.D.3d 648 (2d Dep’t 2012); Matter of Faison v.

Capozello, 50 A.D.3d 797 (2d Dep’t 2008); and Matter of Keanu Blue R.,

292 A.D.2d 614 (2d Dep’t 2002), all of which relied on Tumari W. or

Shaida W.). This Court should put an end to that line of precedent and

affirm that Shaida W. is not—and never was—about parental custody.

22
 3. Neither a regulation nor liberal construction can
justify rewriting the Compact’s text.

Other courts applying the Compact to parents have based their

holdings on two main grounds: a regulation purporting to interpret the

Compact and the Compact’s provision that it be “liberally construed”

according to its purpose. See Green, 864 A.2d at 927–28; State Dept. of

Economic Security v. Leonardo, 200 Ariz. 74, 81–83 (Ct. App. 2001);

Department of Children & Families v. Benway, 745 So. 2d 437, 438–39

(Fla. Dist. Ct. App. 1999). Both arguments are unavailing.

The regulation that these courts relied on was enacted in

accordance with Compact article VII, which authorizes the executive

Compact administrators in each State to jointly “promulgate rules and

regulations to carry out more effectively the terms and provisions of this

compact.” To that end, the Compact administrators formed the

Association of Administrators of the Interstate Compact on the

Placement of Children. Over 40 years after New York codified the

Compact, the Association began issuing regulations that purported to

require the Compact’s application to parents.

The regulation in question states that the Compact applies to

“placements with parents and relatives when a parent or relative is not

23
making the placement as defined in Article VIII(a).” 6 Regulation No.

3(2)(a)(3) (2011), https://tinyurl.com/yhv8y3dd (follow “Regulation No. 3”

hyperlink). But that regulation “runs counter to the clear wording of [the

Compact]” and so “should not be accorded any weight.” Matter of

Lighthouse Pointe Prop. Assoc. LLC v. New York State Dept. of Envtl.

Conservation, 14 N.Y.3d 161, 176 (2010) (quotation marks omitted). As

noted, the Compact applies only to interstate “placements”: the sending

of children across state lines into family-free homes, boarding homes,

childcare agencies, or institutions. Art. II(d). Because sending a child

across state lines to live with a parent is not a “placement,” the Compact

does not apply. It is precisely on this basis that other courts have rejected

the regulation as administrative overreach. See, e.g., Alexis O., 157 N.H.

at 790–91.7

Nor can the regulation shoehorn parents into the Compact by

defining “foster care” to include “court-ordered placements” with “the

6 Article VIII(a) provides that the Compact shall not apply to “[t]he sending or
bringing of a child into a receiving state by his parent, step-parent,
grandparent, adult brother or sister, adult uncle or aunt, or his guardian and
leaving the child with any such relative or non-agency guardian in the
receiving state.”
7 See also R.S., 470 Md. at 404; Emoni W., 305 Conn. at 740; Huff, 347 Ark. at
563; D.F.-M., 157 Wash. App. at 192;; In re C.R.-A.A., 521 S.W.3d 893, 908 (Tex.
App. 2017); S.R.C.-Q., 52 Kan. App. 2d at 462–64; McComb, 934 F.2d at 741.

24
child’s parent(s)” as it attempts to do. See Regulation No. 3(4)(26). This

definition cannot alter the fact that the Compact applies to “placement

in foster care,” art. III(a) (emphasis added), and sending a child to live

with a parent is not a “placement” under the Compact, supra pp. 16–19.

The regulation’s definition of “foster care” also contradicts the plain

meaning of the term: a situation in which children temporarily live with

and are cared for by people who are not their parents. See The American

Heritage Dictionary of the English Language, s.v. foster (1st ed. 1969)

(defining “foster” as an adjective to mean “[r]eceiving, sharing, or

affording parental care and nurture although not related through legal

or blood ties”); Merriam-Webster Online Dictionary, s.v. foster care,

http://tiny.cc/tqthuz (last visited Aug. 7, 2021) (similar).

Likewise flawed is courts’ reliance on a liberal construction of the

Compact to depart entirely from the statutory text. To be sure, the

Compact directs that it “be liberally construed to effectuate [its]

purposes.” Art. X. But interpreting the Compact to encompass parents’

obtaining custody of their own children stretches the Compact’s plain

meaning beyond its breaking point. Again, the Compact applies to

“placements,” a term specifically defined in the statute. That definition

25
does not include children living with their own parents, and bedrock law

forbids this Court to “add words to a statute which has a rational

meaning.” Matter of Richmond Constructors v. Tishelman, 61 N.Y.2d 1,

6 (1983). The Court should accordingly decline to rewrite the Compact.

B. The Second Department’s reading of the Compact

contradicts its history and purpose.

The Compact’s legislative history “confirms that its drafters

intended it to apply only to placement of a child for foster care or as a

preliminary to adoption” and not “natural parents.” Alexis O., 157 N.H.

at 789; accord Emmanuel B., 175 A.D.3d at 56. In proposing the Compact

to the States, the Council of State Governments explained that it would

govern “the interstate placement of children . . . for foster care or as a

preliminary to a possible adoption.” Council of State Govts., supra, at 49.

That purpose follows from the child-protective balance the Compact

sought to strike. The Compact was “drafted under auspices of the New

York State Legislative Committee on Interstate Cooperation.” Hartfield,

supra, at 295–96. The Committee explained that after the Civil War,

many children sent from New York and other eastern States to the

Midwest to be placed for foster care and adoption were instead put to

labor by “unscrupulous persons.” Rep. of the N.Y. Joint Legis. Comm. on

26
Interstate Cooperation 211 (1960), in Bill Jacket ch. 708 (1960). As a

result of those abuses of foster care and pre-adoptive placing practices,

New York enacted a statute forbidding public agencies from placing any

children outside the state. Id. at 212. This was “a complete prohibition of

all out-of-state placements . . . with the exception of placements with

family members within the second degree of consanguinity.” Emmanuel

B., 175 A.D.3d at 55 (citing former Social Welfare Law § 371(12), (14)).

The Legislative Committee found that this prohibition addressed the

problems that had led to the scandals, but that it was overly restrictive

in making it impossible to send children to “a foster home or institution

outside of New York” when adequate care was unavailable in the state.

Id.

Given that this is the problem the Compact was intended to address,

it makes sense that its focus was limited to situations in which one State

“send[s] a child into another party state for foster care or adoption.” Id.

The Compact was designed to pare back the categorical bar on out-of-

state foster and adoptive placements and “increase the opportunities for

the making of good placements.” Mem. of Joint Legis. Comm. on

Interstate Cooperation, supra, at 2. That history counsels against

27
applying the Compact to parents because doing so would decrease options

by keeping children from their parents absent governmental approval.

See Compact art. III(d). It would defy logic for the Legislature to have

sought to increase opportunities for children by imposing restrictions on

parental custody arrangements, which the Legislature had until that

point considered proper. See Emmanuel B., 175 A.D.3d at 55–56.

Other contemporaneous sources confirm that the Legislature

intended the Compact to apply only to foster care and pre-adoptive

placements. The Legislature’s Budget Report on the bill adopting the

Compact noted that the Compact “would broaden the placement field and

provide greater opportunity for the placement in foster homes or adoption

homes of the children in institutions.” Budget Rep. on Bills, Senate Print

No. 4217, in Bill Jacket for ch. 708 (1960). And in its memorandum

accompanying the bill adopting the Compact, the Department of Social

Welfare likewise noted that the Compact’s purpose was to place children

in foster care and adoption. Supra p. 10–11. This history lays bare the

Legislature’s intent in adopting the Compact: providing uniform

standards for interstate placements for foster care and adoption—not for

parents seeking custody of their own children.

28
 Also evident from the Compact’s legislative history is the drafters’

recognition that it was important to minimize the Compact’s interference

with parental rights. In “exempt[ing] certain close relatives” from the

definition of a “sending agency,” the drafters acknowledged the need “to

protect the social and legal rights of the family” and to regulate “only in

the absence of family control.” Compact Draftsman’s Notes, supra, at 44.

It would be peculiar to secure family control in one part of the Compact—

and stress its importance in the Compact’s drafting notes—only to strip

it away without fanfare in another.

At bottom, the legislative history reaffirms that the Compact’s

drafters and adopters were concerned with foster care and adoption, not

parents seeking custody of their own children. And it shows that they

conceived of the Compact as a means of increasing options for children,

not restricting them.

C. The structure of New York’s child-protection regime

confirms that the Compact does not apply to parents.

The Compact, which concerns what the State may do with children

in its custody, must be “construed together” with the rest of New York’s

child-protective scheme because there is no legislative intent to do

otherwise. Matter of Albany Law School v. New York State Off. of Mental

29
Retardation & Dev. Disabilities, 19 N.Y.3d 106, 121 (2012). This Court

has repeatedly interpreted New York’s child-protective statutes in light

of their “place in the overall statutory scheme,” Matter of Jamie J.

(Michelle E.C.), 30 N.Y.3d 275, 284 (2017), including New York’s foster-

care framework, which reflects “the preeminence of the biological family,”

Matter of Michael B., 80 N.Y.2d 299, 313 (1992).

Indeed, New York’s child-protective scheme “embrace[s] a policy of

keeping biological families together” whenever safely possible. Nicholson

v. Scoppetta, 3 N.Y.3d 357, 374 (2004) (quotation marks omitted). The

Legislature has thus made clear that “it is generally desirable for the

child to remain with or be returned to the birth parent,” that “the child’s

need for a normal family life will usually best be met in the home of its

birth parent, and that parents are entitled to bring up their own children

unless the best interests of the child would thereby be endangered.”

Social Services Law § 384-b(1)(ii). And this Court has long recognized the

Legislature’s “fundamental social policy choice[]” to give “biological

parent[s]” the “right to the care and custody of a child, superior to that of

others, unless the parent has abandoned that right or is proven unfit.”

Michael B., 80 N.Y.2d at 308–09.

30
 That policy choice is reflected in the Legislature’s decision to treat

parent–child separation—even to protect children from known safety

risks—as a remedy of last resort. 8 To that end, the Legislature has

allowed children to be separated from their parents only when “necessary

to avoid imminent risk to the child’s life or health.” Family Court Act

§§ 1027(b)(1), 1028(a). Even imminent risk is not enough to separate

parent from child under New York’s child-protection law. Family Court

must still assess “that risk against the harm removal might bring,” and

it “must specifically consider whether imminent risk to the child might

be eliminated by other means.” Nicholson, 3 N.Y.3d at 378–79. Providing

these protections to parents who, like Adrianna’s mother, face

accusations of parental misconduct, cannot be reconciled with denying

them to parents, such as Mr. Laland, who had been accused of nothing.

Rather than endorse that illogical result, the Court should

“harmonize the various provisions of related statutes and . . . construe

them in a way that renders them internally compatible.” Matter of Aaron

8 That intent reflects an appreciation of the harmful effects of foster care and
family separation, which have been documented by a broad range of
professionals and social scientists. See, e.g., Vivek S. Sankaran & Christopher
Church, Easy Come, Easy Go: The Plight of Children Who Spend Less Than 30
Days in Foster Care, 19 U. Pa. J.L. & Soc. Change 207, 210–13 (2015) (citing
studies on the “debilitating effects” of short stays in foster care).

31
J., 80 N.Y.2d 402, 407 (1992). Doing so requires reversing the decision

below. To do otherwise would “[allow] a separate jurisdictional

expressway for the placement of a child to substitute for the manner in

which article 10 expects that threshold determination to be reached” and

thereby “subvert the statutory scheme.” Jamie J., 30 N.Y.3d at 285.

Reading the Compact not to apply to parents like Mr. Laland would

also honor the “clear” legislative “preference” for children to live with

noncustodial parents when they need to be removed from their custodial

parents. Merril Sobie, 2019 Supp. Practice Commentaries, McKinney’s

Cons. Laws of N.Y., Family Court Act § 1017 (online version). That

preference is embodied in the Family Court Act, which requires that

noncustodial parents receive notice that a removal proceeding has been

brought against the custodial parent, Family Court Act § 1017(1)(a), and

that the notice advise the noncustodial parent “of the right to appear and

participate in the proceeding as an interested party intervenor for the

purpose of seeking temporary and permanent release of the child under

this article or custody of the child under article six,” § 1035(d). The Act

also requires that if there is a non-respondent parent with whom the

child may appropriately reside, the child must reside temporarily with

32
that parent pending the outcome of the proceeding against the

respondent parent. § 1017(1)(c)(i), (2)(a).

The Legislature reaffirmed this preference in 2015, when it passed

“a non-respondent’s ‘bill of rights.’” Merril Sobie, 2019 Supp. Practice

Commentary, McKinney’s Cons. Laws of NY, Family Court Act § 1052

(online version). The Legislative history of this legislation explains that

it reflected a recent “sea-change in attitudes and policies” toward non-

custodial parents, stemming from recognition that they are “vital

resources for their children.” Sponsor’s Mem. at 1, in Bill Jacket for ch.

567 (2015), at 7.

In sum, affirming the Second Department’s holding that the

Compact applies to Mr. Laland’s case would “fl[y] in the face of New

York’s policy of keeping ‘biological families together.’” Emmanuel B.,

175 A.D.3d at 58 (quoting Nicholson, 3 N.Y.3d at 374). The Court should

instead interpret the Compact to accord with New York’s other child-

protective statutes.

33
 D. The Court should construe the Compact as not
applying to parents in order to avoid rendering it
unconstitutional.

The Court should decline to apply the Compact to noncustodial

parents in order to avoid “an interpretation . . . that creates a potential

constitutional infirmity.” People v. Correa, 15 N.Y.3d 213, 233 (2010).

“Where the language of a statute is susceptible of two constructions, the

courts will adopt that which avoids . . . constitutional doubts.” Matter of

Jacob, 86 N.Y.2d 651, 667 (1995). Here, construing the Compact to allow

the government to keep children from their parents—when there are not

even allegations of any safety concern that could support a

government-imposed family separation—would render the statute

blatantly unconstitutional.

That conclusion follows from first principles of due process. The

Fourteenth Amendment’s Due Process Clause guarantees parents and

children a “right to the preservation of family integrity.” Duchesne v.

Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). The Clause guards parents’

right to make choices about “the care, custody, and control of their

children”—“perhaps the oldest of the fundamental liberty interests” that

the Fourteenth Amendment protects. Troxel v. Granville, 530 U.S. 57, 65

34
(2000); accord Jamie J., 30 N.Y.3d at 280. In fact, “a natural parent’s

desire for and right to the companionship, care, custody, and

management of his or her children is an interest far more precious than

any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982)

(quotation marks omitted). The Due Process Clause also protects

children’s “parallel . . . liberty interest in not being dislocated from the

emotional attachments that derive from the intimacy of daily family

association.” Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir.

2012) (quotation marks omitted). Just as “[t]he parent has a ‘right’ to rear

its child, . . . the child has a ‘right’ to be reared by its parent.” Matter of

Bennett v. Jeffreys, 40 N.Y.2d 543, 546 (1976).

To avoid interfering with these fundamental rights, the Court

should conclude that the Compact does not authorize States to stand in

the way of fit parents seeking custody of their children.

1. Interpreting the Compact to apply to parents

would violate substantive due process.

The Fourteenth Amendment’s Due Process Clause provides that no

State shall “deprive any person of life, liberty, or property, without due

process of law.” U.S. Const., amend. XIV, § 1. That Clause, like its Fifth

Amendment counterpart, “guarantees more than fair process.”

35
Washington v. Glucksberg, 521 U.S. 702, 719 (1997). It also includes a

substantive component that “provides heightened protection against

government interference with certain fundamental rights and liberty

interests.” Id. at 720. When a fundamental liberty interest is implicated,

the Fourteenth Amendment “forbids the government to infringe . . . [the]

interest[] at all, no matter what process is provided, unless the

infringement is narrowly tailored to serve a compelling state interest.”

Reno v. Flores, 507 U.S. 292, 302 (1993).

The fundamental liberty interest in family integrity “undeniably

warrants deference and, absent a powerful countervailing interest,

protection.” Stanley v. Illinois, 405 U.S. 645, 651 (1972). Without a doubt,

the State has a strong interest in protecting children from harm,

including danger of harm posed by abusive or neglectful parents. See

Nicholson, 3 N.Y.3d at 375. But if the State, in protecting children from

such harm, infringes on family integrity, it violates due process unless it

narrowly tailors its actions to serve the interest. See Reno, 507 U.S. at

302.

a. Applying the Compact to forbid courts from granting custody of

children to parents is not a narrowly tailored means of protecting

36
children from harm. A State narrowly tailors its “interference with the

liberty of a parent to supervise and rear a child” only if it limits such

interference to cases “of abandonment, surrender, persisting neglect,

unfitness or other like behavior evincing utter indifference and

irresponsibility to the child’s well-being.” Matter of Marie B., 62 N.Y.2d

352, 358 (1984). Yet if the Compact applied to parents, it would interfere

with family relations regardless of parental fitness. The Compact starts

from the presumption that “[t]he child shall not be sent, brought, or

caused to be sent or brought into the receiving state.” Art. III(d). The

Compact lifts that bar only once the receiving State determines “that the

proposed placement does not appear to be contrary to the interests of the

child.” Id.

That turns due process on its head. Due process requires presuming

that parents are fit and “act in the best interests of their children,”

Parham v. J.R., 442 U.S. 584, 604 (1979), and requires that “the state

prove[] parental unfitness” before interfering with family integrity,

Santosky, 455 U.S. at 760. By starting from the opposite presumption—

and mandating family separation until its conditions are satisfied—the

Compact would offend due process, which commands “deference” to the

37
liberty interest in the “companionship, care, custody, and management”

that inhere in the parent-child relationship. Stanley, 405 U.S. at 651.

And it would unconstitutionally relieve the State from its burden to make

“a showing of overriding necessity” before interfering with parent–child

relations. Marie B., 62 N.Y.2d at 358.

This constitutional harm is not remedied if the receiving State

eventually approves the Compact application. The Compact process is

notoriously “cumbersome and time consuming.” Merril Sobie, 2014 Supp.

Practice Commentaries, McKinney’s Cons. Laws of N.Y., Family Court

Act § 1017 (online version). The process often entails “lengthy delays,”

leading to “corrosive effects,” Merril Sobie, 2018 Supp. Practice

Commentaries, McKinney’s Cons. Laws of N.Y., Family Court Act § 651

(online version) even when children are ultimately released to their

parents.9

9 See also American Pub. Human Servs. Assn., Interstate Compact on the
Placement of Children (ICPC): A Pathways Policy Brief 2 (2013), https://
tinyurl.com/yhv8y3dd (follow “ICPC Policy Brief” hyperlink) (discussing
“delays in interstate placements that leave children in foster care awaiting
interstate processing and placement six months to one year or more”); Vivek S.
Sankaran, Out of State and Out of Luck: The Treatment of Non-Custodial
Parents Under the Interstate Compact on the Placement of Children, 25 Yale L.
& Pol’y Rev. 63, 74 n.53 (2006) (explaining state Compact administrators
report waiting an average of three to four months for the home-study process

38
 That lag is itself unconstitutional. “[I]f there is delay between the

doing and the undoing[, the parent] suffers from the deprivation of his

children, and the children suffer from uncertainty and dislocation.”

Stanley, 405 U.S. at 647. And children suffer the additional harms caused

by even short stays in foster care. See supra p. 31 n.8.

b. Construing the Compact to apply to parents would violate

substantive due process for another reason: the Compact’s slippery

standard allows receiving States to deny parents custody of their own

children for unconstitutional reasons.

By its plain terms, the Compact allows receiving States to deny

placements that “appear to be contrary to the interests of the child.” Art.

III(d). Yet the Compact gives no guidance on what that standard means.

The Compact thus empowers out-of-state administrators—in direct

violation of the constitutional presumption of parental fitness—to deny

Compact approval “for arbitrary reasons.” Vivek S. Sankaran, Foster

Kids in Limbo: The Effects of the Interstate Compact on Children in Foster

Care, 33 Child L. Prac. 140, 141 (2014). And arbitrary denials indeed

to be completed, and that the process can take between six and twelve
months—or longer).

39
occur. Receiving States have denied approval to parents who “would have

to sleep on the couch to accommodate children,” who “shared housing,” or

who were “financially fragile.” Id. (quotation marks omitted).

These rationales cannot withstand constitutional scrutiny. A State

may separate parent from child only after determining that the parent

lacks “fitness as a parent.” Stanley, 405 U.S. at 648.10 And the State may

find unfitness only upon a showing of the parent’s “utter indifference and

irresponsibility to the child’s well-being.” Marie B., 62 N.Y.2d at 358. A

State comes nowhere close to meeting that standard by showing that

parents might have to sleep on a couch or share housing if they took

custody of their children. Yet if the Compact applies to parents, Family

Court’s hands will be tied when States invoke the Compact to deny

custody for such reasons, creating clear constitutional infirmity.

10 See also Josh Gupta-Kagan, In Re Sanders and the Resurrection of Stanley v.

Illinois, 5 Cal. L. Rev. Circuit 383, 388 (2014) (describing the application of the
Compact to parents as “directly contrary” to Stanley because such application
“rests on paternalistic assumptions directly contrary to the constitutional
presumption that custody with fit parents serves children's interests”).

40
 2. Interpreting the Compact to apply to parents
would violate procedural due process.

The hallmarks of procedural due process are familiar. “[P]rocedural

due process guarantees notice and an opportunity to be heard before a

claimant is deprived of liberty or a recognized property interest.” Matter

of County of Chemung v. Shah, 28 N.Y.3d 244, 264 (2016). The

opportunity to be heard must be “at a meaningful time and in a

meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(quotation marks omitted). Accordingly, before depriving a parent of

their right to the care, custody, and control of their children, the State

must afford the parent “a hearing on their fitness.” Stanley, 405 U.S. at

658; accord Santosky, 455 U.S. at 753–54.

The Compact, however, offers no opportunity to be heard, either

pre- or post-deprivation. Instead, it removes a parent’s application for

custody of his child from Family Court’s purview, where the issue would

otherwise be heard. See Family Court Act §§ 1017, 1052. “Not only is

there no judicial review of agency determinations [under the Compact],

but often there is no administrative process to review a negative

[Compact] decision.” Sankaran, Out of State, supra, at 84. Indeed, “the

majority of states” have “no established administrative process to review

41
[a Compact] denial.” Id. So “if the [out-of-state administrator] decides

that the parental custody does not serve a child's best interests, there is

no mechanism to force the State to prove that proposition at a trial.”

Gupta-Kagan, supra, at 388.

****

Because reading the Compact to apply to parents seeking custody

of their own children would create at least constitutional infirmities, the

canon of constitutional avoidance requires interpreting it to apply only to

foster care and pre-adoptive placements—a reading that accords with the

Compact’s plain text, legislative history, and place in New York’s overall

child-protection scheme.

42
 CONCLUSION

For these reasons, this Court should reverse the Second

Department’s order.

Dated: August 12, 2021 Respectfully submitted,

New York, New York

By:
Scott A. Eisman
Elena Hadjimichael
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
601 Lexington Avenue,
31st Floor
New York, New York 10022
Phone: (212) 277-4000
Facsimile: (212) 277-4001
scott.eisman@freshfields.com
Christine Gottlieb
NYU SCHOOL OF LAW FAMILY
DEFENSE CLINIC
WASHINGTON SQUARE LEGAL
SERVICES
245 Sullivan Street, 5th Floor
New York, New York 10012
Phone: (212) 998-6693
Facsimile: (212) 995-4031
gottlieb@mercury.law.nyu.edu

Attorneys for Petitioner-Appellant

43
 AFFIRMATION OF COMPLIANCE

1. The following statement is made in accordance with Court of

Appeals Rule 500.13(c).

2. This brief was prepared in the processing system Word for

Microsoft 365, with Century Schoolbook typeface, 14-point font for text

and 12-point font for footnotes.

3. The text of the body brief, omitting the cover page and tables,

has a word count of 8,821, as calculated by the processing system.

Dated: August 12, 2021 Respectfully submitted,

By:
Christine Gottlieb