Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 63624-3
Title of Case: In Re The Dep Of D.f.m., Alyce Fabian Miller, Petitioner V. Dshs State Of Washington, Respondent
File Date: 08/02/2010
SOURCE OF APPEAL
Appeal from Snohomish Superior Court
Docket No: 08-7-00573-5
Judgment or order under review
Date filed: 06/01/2009
Judge signing: Honorable Anita L Farris
Authored by Anne Ellington
Concurring: Linda Lau
Stephen J. Dwyer
COUNSEL OF RECORD
Counsel for Petitioner(s)
Nielsen Broman Koch PLLC
Attorney at Law
1908 E Madison St
Seattle, WA, 98122
Nielsen Broman & Koch PLLC
1908 E Madison St
Seattle, WA, 98122-2842
Counsel for Respondent(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Seattle, WA, 98101
Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635
Counsel for Other Parties
Michael Scott Majors
Office of Attorney General
3501 Colby Ave Ste 200
Everett, WA, 98201-4795
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of ) No. 63624-3-I
(DOB: 7/19/05), )
Minor Child. )
ALYCE FABIAN-MILLER, )
STATE OF WASHINGTON, )
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, )
RICO VERNER, ) PUBLISHED OPINION
Respondent. ) FILED: August 2, 2010
Ellington, J. -- This case requires us to decide whether the interstate compact
on placement of children applies to parental placements. We hold it does not, and
affirm the trial court's decision to place D.F-M. with his father in Oklahoma.
D.F-M. was born on July 19, 2005. On December 22, 2005, a Washington court
entered an order in a parentage action, finding that Rico Verner is D.'s father and
designating his mother, Alyce Fabian-Miller, as his custodian. The order reserved the
issue of a parenting plan for future determination upon motion by either party. No
parenting plan was ever entered.
Starting in 2006, the Department of Social and Health Services (DSHS) received
a series of referrals alleging neglect, domestic violence, and drug use by Fabian-Miller.
In 2007, Fabian-Miller signed a voluntary service plan and a safety plan in response to
the allegations. She failed to comply with the plans. In March 2008, DSHS placed her
children, including D., in protective custody, and filed dependency proceedings. At that
point, DSHS did not know Verner's whereabouts, or what role he played in D.'s life. It
was believed his last known address was in Tulsa, Oklahoma.
On April 16, 2008, the juvenile court entered an agreed order finding D. to be a
dependent child as to Fabian-Miller and ordering that he be placed in DSHS-approved
out-of-home care. Verner had yet to be served with the dependency petition, and did
not appear or otherwise participate. The court nevertheless ordered Verner to contact
DSHS to determine what services were necessary and to establish an appropriate
Shortly thereafter, Verner learned that D. was in foster care. He contacted
DSHS to express "extreme interest" in having his son placed with him.1 He was served
1 Clerk's Papers at 40.
the dependency petition. DSHS submitted a request to Oklahoma under the interstate
compact on placement of children2 (ICPC) seeking a home study regarding Verner and
its agreement to supervise D.'s placement there. After a home study, Oklahoma
declined to accept supervision. The Oklahoma social worker noted that Verner had
never parented his child, had not completed a DSHS-recommended, although not court-
ordered, parenting class, did not have a steady income, was attending school in the
evenings and would not be able to parent the child should he become gainfully
employed, drove a car without a driver's license or insurance, lacked a child's car seat,
and "did not appear to be" honest with the social worker about a relationship he was
involved in.3 Oklahoma recommended reevaluating Verner after he completed a
parenting class and became gainfully employed. DSHS was supportive of Verner's
efforts to have D. placed with him, but would not recommend placement absent
Verner responded to the dependency petition, requesting that it be dismissed
and that D. be placed with him. On October 20, 2008, he filed a motion seeking to
have D. placed with him in Oklahoma. Verner had addressed some of the concerns
cited by the Oklahoma social worker. He was employed, was approaching completion
of his welding degree, and explained that his mother would help with D.'s care while he
was at school or work. He had also ended the relationship the social worker had
expressed concern about. The court denied the motion without prejudice and invited
2 Ch. 26.34 RCW.
3 Clerk's Papers at 151.
Verner to renote the motion once he addressed the other concerns raised in the home
study and completed a parenting class.
By April 2009, Verner had completed a parenting course, moved in with his
mother, completed school, was no longer in contact with his ex-girlfriend, was
maintaining his employment while looking for opportunities in his new field, and was in
the process of obtaining a driver's license. He was also having weekly phone contact
with D. DSHS made a second request that Oklahoma agree to D.'s placement with
Oklahoma again refused, this time on grounds of inadequate housing. Under an
Oklahoma policy, Verner's housing was inadequate because Verner, his mother, and
D. would all live in a two-bedroom residence. The Oklahoma social worker who
performed the home study did not visit the residence, but assessed it based on a
telephone conversation with Verner.
On May 28, 2009, Verner renewed his motion to have D. placed with him. In the
meantime, he had acquired a vehicle, obtained insurance, and was in the process of
obtaining an Oklahoma driver's license. The court held a hearing on June 1, 2009.
Verner argued he had addressed all concerns raised in the 2008 ICPC home study,
and explained the living arrangements intended to accommodate his family.
Fabian-Miller opposed the motion, claiming Verner had unresolved anger issues
and had had no contact with D. since the child was seven months old. She also
claimed Verner threatened to beat one of her other children when she was pregnant
DSHS stated it had no basis to believe Verner was not a fit parent. But DSHS
argued that without a positive ICPC home study, the court could not lawfully place D.
with Verner in Oklahoma. DSHS could not say whether Fabian-Miller was likely to be
successful in reuniting with her children.
The court ordered D. placed with Verner. Fabian-Miller moved to stay the order
while she sought discretionary review in this court. On June 5, the trial court denied
the stay. D. left with Verner for Oklahoma.
We granted Fabian-Miller's request for discretionary review.
The only issue presented by this case is whether the ICPC applies to parental
Verner first argues the issue is not properly before us. He contends Fabian-
Miller raised it for the first time in her motion for a stay, and that she did not designate
the June 5 order in the notice of appeal.
We disagree with this reading of the record. The subject of the June 1 hearing
was the impact of the Oklahoma home study on D.'s placement. Although Fabian-
Miller focused on the desirability of the placement, the State argued that the negative
home study precluded it. The ICPC issue was thus before the court at the June 1
hearing. Also, in Fabian-Miller's motion to stay, she argued that a positive ICPC home
study is required before a court sends a child to another state. Accordingly, the June 5
hearing included an extensive discussion of the compact. Fabian-Miller's motion was
in substance a motion for reconsideration, and the appeal from the June 1 order
brought up for review the June 5 order as well.4 The effect of the compact upon D.'s
placement is properly before us.
The Interstate Compact on the Placement of Children
An interstate compact is a binding legal instrument which provides for formal
cooperation between states.5 When adopted by a state, compacts are statutory and
contractual at the same time.6 The compact does not express federal law.7 It is thus
construed as a matter of state law.8 Given its dual nature as a statute and a contract,
uniformity of interpretation is important.9
We review questions of statutory interpretation de novo.10 The primary objective
in construing statutes is to ascertain the intent of the legislature.11 "'[I]f the statute's
meaning is plain on its face, then the court must give effect to that plain meaning as an
expression of legislative intent.'"12 "The 'plain meaning' of a statutory provision is to be
discerned from the ordinary meaning of the language at issue, as well as from the
4 See RAP 2.4(b)(f) (an appeal from a final judgment brings up for review the
ruling of the trial court on an order deciding a timely motion for reconsideration).
5 State v. Svenson, 104 Wn.2d 533, 538, 707 P.2d 120 (1985).
7 McComb v. Wambaugh, 934 F.2d 474, 479 (3d Cir. 1991).
10 Sleasman v. City of Lacey, 159 Wn.2d 639, 642, 151 P.3d 990 (2007).
11 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813, 828 P.2d 549
12 State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005) (alteration in
original) (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9 -- 10, 43
P.3d 4 (2002))
context of the statute in which that provision is found, related provisions, and the
statutory scheme as a whole."13 Legislative history, principles of statutory construction,
and relevant case law may provide guidance in construing an ambiguous statute.14
The ICPC was drafted in the 1950s by a group of state social service
administrators to address the problem of providing services to children placed across
state lines.15 Its stated purposes are to foster cooperation and information sharing
among member states so as to ensure that children requiring placement "receive the
maximum opportunity to be placed in a suitable environment and with persons or
institutions having appropriate qualifications and facilities to provide a necessary and
desirable degree and type of care."16 Its provisions are to "be liberally construed to
effectuate the purposes thereof."17 The compact consists of 10 articles that define the
placements it governs and the procedures to be followed, and provide for specific
protections and services. It has been enacted by all 50 states, the District of Columbia,
and the United States Virgin Islands.18
Under article III, the scope of the compact is limited to placements in foster care
or preliminary to an adoption.19 Article III also sets out the requirements for a valid
14 State v. Watson, 146 Wn.2d 947, 955, 51 P.3d 66 (2002).
15 See American Public Human Services Association, Guide to the Interstate
Compact on the Placement of Children 3 (2002), available at http://icpc.aphsa.org/
16 RCW 26.34.010 art. I(a).
17 Id. art. X.
18 Washington enacted the ICPC in 1971.
19 See McComb v. Wambaugh, 934 F.2d 474, 480 (3d Cir. 1991).
placement. No "sending agency" (defined in article II(b) to include a court) "shall send,
bring, or cause to be sent or brought into any other party state any child for placement
in foster care or as a preliminary to a possible adoption"unless the sending agency
complies with the ICPC,20 which requires the sending agency to notify the receiving
state of the intended placement and to provide such documents as may be necessary
to carry out the ICPC's purposes.21 The placement may not occur until the receiving
state notifies the sending agency in writing that "the proposed placement does not
appear to be contrary to the interests of the child."22
The ICPC does not define "foster care." The plain, ordinary meaning of the term
is the placement of a child in a substitute home, one other than that of the child's
parents.23 Under article II(d), "placement" means "the arrangement for the care of a
child in a family free or boarding home or in a child-caring agency or institution . . . and
any hospital or other medical facility."24 Although "family free" or "boarding" homes are
not defined, these terms clearly refer to nonparental residential arrangements that
provide children with the kind of care usually received from parents.25 Unlike a
boarding home, the care provided by a family free home is free of charge.26
20 RCW 26.34.010 art. III(a).
21 See id. art. III(b), (c).
22 Id. art. III(d).
23 See Webster's Third New Int 'I Dictionary 897 (1993); Black's Law Dictionary
727 (9th ed. 2009).
24 RCW 26.34.010 art. II(d).
25 See In re Alexis O., 157 N.H. 781, 959 A.2d 176, 182 (2008); Arizona Dep't of
Economic Sec. v. Leonardo, 200 Ariz. 74, 22 P.3d 513, 519 (2001).
26 Alexis O., 959 A.2d at 182.
Courts across the country are divided on whether the compact applies when the
out-of-state placement is to the other parent.27 Some courts have concluded it does, in
part because the definition of "placement" does not expressly exclude parents from the
category of individuals who may provide care.28 But the definition focuses not on
categories of individuals but on kinds of places: family type homes or child care
institutions versus hospitals or schools.29
Other courts have relied on articles VIII and X to hold that the ICPC applies to
parental placements. Article X mandates that the ICPC's provisions be liberally
construed to effectuate its purposes.30 Article VIII is a limiting section. It excludes from
the purview of the compact situations in which a child is sent to another state by a
27 A slight majority of courts that have addressed the issue have decided that the
ICPC applies to a placement with a parent so long as the child remains subject to the
jurisdiction of the juvenile court. See Green v. Div. of Family Servs., 864 A.2d 921
(Del. Supr. 2004); H.P. v. Dep't of Children and Families, 838 So. 2d 583 (Fla. App.
2003); Arizona Dep't of Economic Sec. v. Leonardo, 200 Ariz. 74, 22 P.3d 513 (2001);
Adoption of Warren, 44 Mass. App. Ct. 620, 693 N.E.2d 1021 (1998). Other courts
have so assumed, without discussion. See, e.g., K.D.G.L.B.P. v. Hinds County Dep't of
Human Servs., 771 So. 2d 907 (Miss. 2000); D.S.S. v. Clay County Dep't. of Human
Res., 755 So. 2d 584 (Ala. Civ. App.1999); State ex rel. Juvenile Dep't of Clackamas
County v. Smith,107 Or. App. 129, 811 P.2d 145 (1991); In re J.H., 156 Vt. 66, 587
A.2d 1009 (1991).
The only federal court to have addressed the issue held that the ICPC does not
apply to parental placements. See McComb v. Wambaugh, 934 F.2d 474 (3d Cir.
1991). The Third Circuit is joined by several state courts. See In re Alexis O., 157 N.H.
781, 959 A.2d 176 (2008); Arkansas Dep't of Human Servs. v. Huff, 347 Ark. 553, 65
S.W.3d 880 (2002); State of New Jersey Div. of Youth & Family Servs. v. K.F., 353 N.J.
Super. 623, 803 A.2d 721 (2002); Tara S. v. Superior Court of San Diego County, 13
Cal. App. 4th 1834, 17 Cal. Rptr. 2d 315 (1993).
28 Leonardo, 22 P.3d at 519.
29 McComb, 934 F.2d at 480.
30 RCW 26.34.010 art. X.
parent, certain relatives, or a guardian, to live with another such relative (including a
parent) or a nonagency guardian.31 Because article VIII does not mention parental
placements, and because the ICPC must be construed liberally, some courts have
concluded the compact applies to such placements.32
We disagree. First, this reasoning conflicts with the plain terms of article III,
which limits the scope of the compact to foster care or preadoption placements by a
"sending agency." Article VIII clarifies that the child's family or guardian is not a
sending agency. It is thus designed to limit the scope of the compact. The fact it does
not identify every situation not qualifying as foster care cannot reasonably be
interpreted to expand the compact.
Under Article V, the sending state retains jurisdiction over the child as if "the
child had remained in [that] state," and the sending agency has continuing financial
responsibility for the child's support and maintenance 33 As the Third Circuit observed,
to construe placement of a child with his parent as a placement in foster care under the
ICPC "would result in the anomalous situation of imposing a financial obligation upon a
sending state that supersedes parents' duty to support their children."34
We are persuaded that the ICPC governs only the placement of children in
substitute arrangements for parental care.
31 Id. art. VIII(a).
32 See Dep't of Children and Families v. Benway, 745 So. 2d 437, 438 -- 39 (Fla.
33 RCW 26.34.010 art. V(a).
34 McComb, 934 F.2d at 480.
The Association of Administrators Regulations
The Association of Administrators of the Interstate Compact on the Placement of
Children (AAICPC) are officials designated by each member state to coordinate ICPC
matters within that state.35 Acting jointly, the administrators "shall have the power to
promulgate rules and regulations to carry out more effectively the terms and provisions
of this compact."36 The AAICPC has issued a regulation providing that the ICPC
applies, with some limited exceptions, to parental placements. Fabian-Miller and DSHS
urge us to defer to the regulation.
Regulation 3 is titled "Placements with Parents, Relatives, Non-agency
Guardians, and Non-family Settings."37 Under the regulation, placement "includes the
arrangement for the care of a child in the home of his parent . . . when the sending
agency is any entity other than a parent,"38 foster care includes circumstances where
the "24-hour a day care is provided by the child's parent(s) by reason of a court-
ordered placement (and not by virtue of the parent-child relationship),"39 and the ICPC
does not apply "whenever a court transfers the child to a non-custodial parent with
respect to whom the court does not have evidence before it that such parent is unfit,
does not seek such evidence, and does not retain jurisdiction over the child after the
35 See RCW 26.34.010 art. VII.
37Ass'n of Adm'rs of the Interstate Compact on the Placement of Children, ICPC
Regulations regulation 3 (effective July 2, 2001), available at
38 Id. regulation 3(1).
39 Id. regulation 3(5).
court transfers the child."40
The AAICPC regulations have not been adopted in Washington41 and therefore
have no binding effect. In any event, regulation 3 cannot control because it
impermissibly expands the scope of the ICPC beyond that established in article III.
Under article III, the compact applies to foster care or placements preliminary to
possible adoption, neither of which is a parental placement.
Courts that have applied regulation 3 have often emphasized the desirability of
applying the ICPC to parental placements. One court explained that regulation 3
recognizes that a noncustodial parent may have had no involvement in the child's care
before the child is removed from the care of the other parent, leaving a question as to
the noncustodial parent's fitness, and "many of the same concerns that must be
addressed before out-of-state placement with a 'substitute' or foster parent, are also
present with a non-custodial natural parent." 42
These are valid concerns. In making placement decisions, the court's
paramount duty is to protect the best interests of the children.43 Placement with an unfit
40 Id. regulation 3(6)(b).
41 Compare RCW 26.34.010 art. VII (providing that compact administrators have
"the power to promulgate rules and regulations to carry out more effectively the terms
and provisions of [the ICPC]") with RCW 13.24.011 art. IV (providing that the interstate
commission for juveniles has the power to "[a]dopt rules to effect the purposes and
obligations of [the Interstate Compact on Juveniles] which shall have the force and
effect of statutory law and shall be binding in the compacting states to the extent and in
the manner provided in this compact").
42 Green v. Div. of Family Servs., 864 A.2d 921, 928 (Del. Supr. 2004).
43 In re J.B.S., 123 Wn.2d 1, 8 -- 9, 863 P.2d 1344 (1993).
obviously not in a child's best interests, and courts can and should demand information
about the absent parent's fitness. However, courts, not administrative agencies or
individual social workers, are the ultimate evaluators of a parent's ability to care for his
child, and the ultimate decision-makers as to whether placement with a fit parent is in
the child's best interests. Yet under regulation 3, when a fit parent is available but an
ICPC home study is negative, all discretion is transferred to an administrative agency in
the sister state. If the court determines the parent is fit, the ICPC may become an
obstacle to the court's ability to act in the best interests of the child.
This case is an excellent example. A thoughtful and well-informed trial judge
searched out the best interests of a child who, fortunately, has a fit parent anxious to
offer him a home. DSHS has consistently assessed Verner to be a fit parent, and he
steadfastly addressed the concerns of the Oklahoma social worker. By the time of the
final study, the social worker's only complaint was that Verner's house had too few
bedrooms. Washington has no such policy, and the court was satisfied with the
proposed living arrangements. But DSHS insists the judge was bound to decide
against the placement.
This is nonsense. The number of bedrooms a family enjoys is a direct
consequence of its financial circumstances. Many children have been happily raised
without bedrooms of their own. Other children have bedrooms while a parent sleeps on
the sofa. It is the parenting relationship, not the square footage, that interests the
court, because it is the parenting relationship that matters to the child. What the
evidence shows is that Verner is a fit parent able to provide a good home for D. That
was what the court considered, and we believe the court made the right decision.
We agree with the Third Circuit44 that regulation 3 impermissibly expands the
scope of the compact beyond that set out in article III.45 The ICPC does not require
sister state approval of parental placements.46 The court acted within its discretion in
placing D. with his father in Oklahoma.
44 McComb, 934 F.2d at 481.
45 An administrative rule has force of law only if the agency promulgated it with
delegated authority. Campbell v. Dep't of Soc. & Health Servs., 150 Wn.2d 881, 892,
83 P.3d 999 (2004). "[A]n agency does not have the power to promulgate rules that
amend or change legislative enactments" but it may "'fill in the gaps' in legislation"
where necessary to effectuate a general statutory scheme. Green River Cmty. Coll. v.
Higher Educ. Pers. Bd., 95 Wn.2d 108, 112, 622 P.2d 826 (1980) (quoting Hamma
Hamma Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975)),
amended on reh'g, 95 Wn.2d 962, 633 P.2d 1324 (1981).
46 Given our disposition, we do not address Verner's argument that if the ICPC
applies to parental placements, it violates due process.