Child Welfare - Placement of a Child with a Natural Parent

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Child Welfare - Placement of a Child with a Natural Parent

Transcript Of Child Welfare - Placement of a Child with a Natural Parent

Volume 37 Issue 4

Article 11

1992
Child Welfare - Outside the Interstate Compact on the Placement of Children - Placement of a Child with a Natural Parent
Kimberly M. Butler

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Recommended Citation Kimberly M. Butler, Child Welfare - Outside the Interstate Compact on the Placement of Children Placement of a Child with a Natural Parent, 37 Vill. L. Rev. 896 (1992). Available at: https://digitalcommons.law.villanova.edu/vlr/vol37/iss4/11
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CHILD WELFARE-OTSIDE THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN-PLACEMENT OF A CHILD WITH A
NATURAL PARENT
McComb v. Wambaugh (1991)
I. INTRODUCTION
Parenspatriae is a power that is ascribed to states to act as guardian in order to care for those who cannot care for themselves.' The Interstate Compact on the Placement of Children (the Compact) is an example of this power.2 The Compact was developed in the late 1950s to help member states protect children who are placed in interstate foster care and adoption.3 One of the primary concerns of the drafters of the Compact, and a fairly typical parental concern, was ensuring that a child received proper care, support and supervision following his or her transfer from a sending state's custody to a home in a receiving state.4
Recently, in McComb v. Wambaugh,5 the United States Court of Appeals for the Third Circuit placed a limit on a Compact state's parens patriae role. The McComb court held that the terms of the Compact do not apply where the child is placed in the custody of a natural parent. 6 This limitation on the Compact's scope is a logical one because it is the customary role of a natural parent, and not a state, to protect a minor child. 7 In certain circumstances, however, the McComb holding may seem unfair.
1. The phrase parens patriae literally means "parent of the country." BLACK's LAw DICTIONARY 1114 (6th ed. 1990).
2. Bernadette W. Hartfield, The Role of the InterstateCompact on the Placementof Children in InterstateAdoption, 68 NEB. L. REV. 292, 297 (1989). The Compact was designed to facilitate placements that "safeguard the interests of the child" and allow states to properly discharge their "legal responsibility . . . to protect the interests of the child." Id.
3. Id. at 295. Concerns leading to the development of the Compact were threefold: (1) failure of existing statutes to provide protection to children moved interstate; (2) territorial limitations of states' jurisdiction that left states unable to ensure that children received proper care and supervision in a receiving state; and (3) lack of a means by which to compel a receiving state to provide necessary care. Id.
4. Id. A study of interstate placement problems identified three main concerns to be addressed by the Compact, including "the powerlessness of the state from which the child was sent to ensure that proper care and supervision were provided in another state." Id.
5. 934 F.2d 474 (3d Cir. 1991). 6. Id. at 482. 7. Schall v. Martin, 467 U.S. 253, 265 (1984) ("Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control fails, the state must play its part as parens patriae.").
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. BACKGROUND
A. Facts
When plaintiff Khemsu Walton (Khemsu) was only two weeks old, a Virginia hospital found that he was malnourished.8 Following an inves-
tigation, the local Virginia domestic relations court removed Khemsu
and his four siblings from the custody of their natural mother, Marie Walton (Walton).9 Khemsu was subsequently placed in foster care with his aunt and uncle in Virginia.' 0
Walton regained custody of Khemsu following two years of separation."1 In placing Khemsu with his mother, both Virginia and Pennsylvania followed the Compact's guidelines.' 2 The Virginia court required an investigation of the Walton home prior to Khemsu's return.13 The Virginia court also requested that the Philadelphia Depart-
ment of Public Works (DPW) provide quarterly reports on Khemsu
8. McComb, 934 F.2d at 476. Marie Walton and her children were involved in a car accident while visiting relatives in Virginia. Id. The family was taken to a local hospital for treatment, and the hospital discovered that all five of Walton's children were malnourished. Id.
9. Id. The Domestic Relations Court of Halifax County, Virginia removed all five of Walton's children from her custody. Id. The children were placed in the temporary custody of the Halifax County Department of Social Services. Id.
10. Id. Walton returned to her home in Philadelphia, but her children remained in Virginia. Id.
11. Id. at 477. The Halifax County court granted Walton custody of Khemsu and his older brother on April 27, 1982. Id.
12. Id. at 476-77. The Third Circuit's decision, however, obviated the need for following the Compact's guidelines when a child is placed with his or her natural parent. Id. at 482. The Third Circuit held that "the Compact does not apply when a child is returned by the sending state to a natural parent residing in another state." Id. For a discussion of the Third Circuit's holding and analysis in McComb, see infra notes 50-76 and accompanying text.
13. McComb, 934 F.2d at 477. The Compact permits the sending state to "obtain the most complete information on the basis of which to evaluate a projected placement before it is made." VA. CODE ANN. §§ 63.1-219.2 (Michie 1991). This information may include home studies and a formal evaluation of the proposed placement by a child welfare agency or facility. Cathleen Tucker, Interstate Compact Protects Children, 12 FAM. ADvoc., Fall 1989, at 26, 42.
After Marie Walton petitioned the Domestic Relations Court of Halifax County, Virginia, county social workers requested information about her from a local Pennsylvania agency. McComb, 934 F.2d at 476. The Philadelphia Department of Public Welfare (DPW) was responsible for fulfilling this request. Id. DPW recommended the return of the Walton children after conducting one announced visit to the Walton home. Id. In October 1981, the Virginia court returned custody of the three oldest children to Walton, subject to continued supervision by the Department of Social Services of Philadelphia. Id. DPW conducted two additional announced visits to Walton's home and found the children in good health. Id. Jean Summons, a DPW social worker and a McComb defendant, then recommended to the Virginia court that Khemsu and an older brother also be returned to Walton. Id. As in the previous custody order, the Virginia court made Khemsu's return contingent upon the continued supervision of Philadelphia's Department of Social Services. Id. at 477.

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following his return to the Walton home. 14 The Virginia judge signed the necessary Interstate Compact Application Child Placement Request and the custody order on April 27, 1982.15 A Virginia social worker then accompanied Khemsu and his younger brother to Philadelphia, where they rejoined their mother. 16 In May, the Pennsylvania Compact authorities approved the placement request. 17
In theory, this approval permitted the Virginia court to retain jurisdiction and monitoring capabilities. 18 Virginia attempted to supervise Khemsu's case, but Walton refused to cooperate with the Philadelphia DPW and disallowed any further home visits. 19 Neither Pennsylvania nor Virginia authorities pursued the case any further.2 0
When Khemsu was four years old, Walton brought him to a Phila-

14. McComb, 934 F.2d at 477. The Virginia court requested reports on all
five Walton children. Id.
15. Id. The judge's placement application was made later than normal. Typically, the sending state relays the Compact application in order to generate the preliminary reports on the proposed placement home. Tucker, supra note 13, at 42. In McComb, reports on the Walton home had already been generated and received by the Virginia court. McComb, 934 F.2d at 476.
Each Compact member state has a "compact administrator" who oversees administration of the Compact in his or her respective state. Tucker, supra note 13, at 26. The Compact administrator "act[s] as a clearinghouse for all referrals of interstate placements." Id. Customarily, the Compact administrators of the sending and receiving states determine the type of monitoring that will be done. Id. at 42.
In Khemsu's case, Virginia requested quarterly reports. McComb, 934 F.2d at 477. The reports filed by the Pennsylvania DPW prior to Khemsu's return addressed the condition of the Walton home, the health of the three oldest Walton children, and the children's school attendance. Id. at 476. After Khemsu and his brother were returned to Walton, however, the Pennsylvania Compact administrator notified the Virginia administrator that Pennsylvania would not provide the quarterly reports that Virginia had requested and instead would provide only semi-annual reports. Id. at 477.
16. McComb, 934 F.2d at 477.
17. Id. Placement of a child is approved by the receiving state, here Pennsylvania, if "the proposed placement does not appear to be contrary to the interests of the child." 62 PA. CONS. STAT. ANN. § 761, art. III (d) (Supp. 1992).
18. 62 PA. CONS. STAT. ANN. § 761, art. V(a) ("The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child ....").
19. McComb, 934 F.2d at 477. Philadelphia DPW policy requires prearranged home visits. Id. at 476. DPW informed a Halifax County social worker of Walton's refusal to cooperate after the social worker requested progress reports in October 1982 and February 1983. Id. at 477.
20. Id. at 477. In a letter to the Pennsylvania Compact administrator, defendant Jean Summons, a Philadelphia DPW social worker, explained the problems they were having with Walton and stated that "if Virginia wants us to make another attempt to investigate Ms. Walton, please have them notify us in writing." Id. (quoting letter ofJean Summons to Pennsylvania Compact administrator). No evidence indicates that the Virginia authorities responded to this letter. Id.

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delphia hospital.2 1 At that time, he weighed thirteen pounds. 2 2 Due to the severity of his malnourishment, Khemsu sustained irreparable brain damage.2 3

B. Plaintiff's Argument
Khemsu Walton, represented by his guardian ad litem David Mc-
Comb, brought suit for injuries he suffered after being returned to the custody of his natural mother. 24 Khemsu sought damages under 42
U.S.C. § 1983.25 He alleged that the defendants "failed to evaluate properly Marie Walton's capacity to care adequately for her children,
failed to perform visits as required by the Compact and the Virginia
court order, and displayed deliberate indifference to Khemsu's constitutional rights."'2 6 Essentially, Khemsu sought damages against the city and its employees for failure to protect him from his mother. 2 7
The United States District Court for the Eastern District of Pennsylvania granted the defendants' motion for summary judgment.2 8 The district court found that because the Compact is inapplicable when a
child is returned to his or her natural parent, any custodial relationship
between the Virginia court and Khemsu ended when he was returned to his mother. 29 Therefore, the Virginia court had no authority to order
21. Id. 22. Id. At the time Khemsu was hospitalized, he had been in his mother's custody for more than two years. Id. Over fifteen months had passed since the Pennsylvania DPW's last communication with the Virginia Compact authorities. Id. 23. Id. The Third Circuit noted that Walton "plead[ed] guilty to criminal charges arising out of her failure to provide properly for Khemsu," who now lives in foster care. Id. 24. Id. Khemsu named as defendants the City of Philadelphia and seven members (four commissioners and three social workers) of the Philadelphia DPW. Id. at 474. 25. Id. at 477. This federal statute provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1988).
26. McComb, 934 F.2d at 477. Khemsu's attorneys argued that the defendants' failure to provide these services constituted a violation of the Equal Protection Clause. Id.
27. Id. at 476. 28. Id. The motion for summary judgment was decided byJudgeJ. William Ditter, Jr. Id. 29. Id. at 477. The district court found that the Virginia court relinquished formal custody to Walton in its April 27, 1982 court order. Id. The Virginia court had ordered the return of Khemsu to Walton's custody, but it had qualified its order by requiring the "continuing supervision of the appropriate De-

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Philadelphia officials to supervise Khemsu.3 0 Additionally, the district court found that the Compact did not create an entitlement to or a liberty interest in freedom from his mother's mistreatment.3 ' As a result, the court held that it was bound by the Supreme Court's ruling in DeShaney v. Winnebago County Department of Social Services.32 In DeShaney, the Court held that "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." 3 3
On appeal, Khemsu's argument focused upon an exception to the DeShaney rule.3 4 In DeShaney, the Court recognized that "in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." 3 5 The Court has defined limited circumstances as those where "the State

partment of Social Services in Philadelphia, Pa." Id. (quoting Virginia court order).
30. Id. The district court found that the custodial relationship between the Virginia court and Khemsu was legally terminated on April 27, 1982, the date the court signed the order returning custody of Khemsu to his mother. Id.
31. Id.
32. 489 U.S. 189 (1989). 33. Id. at 197. In DeShaney, Joshua DeShaney and his mother brought suit against Winnebago County, its Social Services Department (SSD) and various individual SSD employees under 42 U.S.C. § 1983. Id. at 193. Joshua DeShaney, like Khemsu Walton, was four years old when he suffered severe, irreparable brain damage. Id. Joshua's brain damage resulted from a number of brain hemorrhages caused by his father's beatings. Id. Joshua's father, Randy DeShaney, was subsequently convicted of child abuse. Id. The Social Services Department had notice thatJoshua might be a victim of child abuse. Id. at 192. For two years, the SSD monitored the DeShaney home. Id. at 192-93. During this time, Joshua went to the hospital emergency room three times with suspicious injuries, and the SSD was contacted each time. Id. The SSD, however, took no action. Id. at 193. The Court found that Joshua had no recourse against the defendants under the Due Process Clause because "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." Id. at 195. Instead, the Court found that the Due Process Clause acts as a limitation on the states' power to infringe on individual rights, not as a guarantee of "minimal levels of safety and security." Id.
34. McComb, 934 F.2d at 478-79. 35. DeShaney, 489 U.S. at 198. This DeShaney exception is commonly referred to as the "special relationship" exception. Id. at 197. In McComb, Khemsu argued that, taken together, the Compact and the Virginia court order created a special relationship between him and the Philadelphia defendants that brought him within the exception to the DeShaney rule. McComb, 934 F.2d at 478-79. The Third Circuit, however, held that the Virginia court lacked in personam jurisdiction over the Philadelphia DPW social workers, which was necessary for its court order to be enforceable. Id. at 482. Nonetheless, the Third Circuit believed that the Virginia court could have retained jurisdiction by invoking the Uniform Child Custody Jurisdiction Act (UCCJA). Id. Both Pennsylvania and Virginia are parties to the UCCJA. See 23 PA. CONS. STAT. ANN. §§ 5341-5366 (Supp. 1991) (adopting UCCJA); VA. CODE ANN. §§ 20-125 to -146 (Michie 1990) (same). For a further discussion of the

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by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself . 3..."3F6 or example, the
Court has required a state to provide adequate medical care to incarcerated prisoners.3 7
Except in extremely limited circumstances, the Supreme Court remains unwilling to subject a state to liability for its failure to protect private citizens. 38 The DeShaney case is an excellent example of the
Court's reluctance to find a state liable where harm has been inflicted by a private actor. 39 The local social services department was aware that Joshua DeShaney was possibly an abused child.40 In fact, a social worker who had visited the DeShaney home approximately twenty times later commented: "I just knew the phone would ring some day and Joshua would be dead."' 4 1 Despite the social services department's close contact with the DeShaney situation, the Court refused to hold the de-
fendants, Winnebago County and its social workers, liable for violating Joshua's substantive due process rights. Instead, the Court concluded that "[tihe most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them."'4 2
Despite the factual similarities between the DeShaney case and his own case, Khemsu argued that his suit was more analogous to Stoneking

possible impact of the UCCJA on the McComb case, see infra notes 95-105 and accompanying text.
36. DeShaney, 489 U.S. at 200. An analogous theory has been utilized by the Third Circuit. See, e.g., Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990) (allowing high school student sexually abused by teacher to maintain viable § 1983 claim against school officials where officials "with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused her constitutional harm").
More recently, the Supreme Court held that a public school may be held liable for monetary damages under Title IX where a high school teacher allegedly sexually harassed and abused a student. Franklin v. Gwinnett County Pub. Sch., 112 S. Ct. 1028, 1029-32 (1992). In Franklin, school teachers and administrators also allegedly failed to take any action to stop the teacher in question and discouraged the student from filing charges. Id. at 1029.
37. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); see also Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982) (unconstitutional to confine involuntarily committed mental patient under unsafe conditions).
38. See, e.g., DeShaney, 489 U.S. at 195 (Supreme Court unwilling to find liability where minor child injured by his father, a private citizen).
39. Id. at 202. The Court commented that "the State had no constitutional duty to protect Joshua against his father's violence [and], its failure to do sothough calamitous in hindsight-simply does not constitute a violation of the Due Process Clause." Id. For a more detailed description of the DeShaney facts, see supra note 33.
40. DeShaney, 489 U.S. at 192-93.
41. Id. at 209 (Brennan, J., dissenting) (quoting DeShaney v. Winnebago County Dep't of Social Servs., 812 F.2d 298, 300 (7th Cir. 1987)).
42. Id. at 203.

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v. Bradford Area School District 4 3 than to DeShaney.44 In Stoneking, the Third Circuit held that a school district could be liable under section 1983 for maintaining a policy of deliberate indifference toward alleged sexual abuse by a teacher. 4 5 Khemsu argued that the Philadelphia defendants similarly maintained "policies deliberately indifferent to the constitutional rights of the children" whom they had a duty to protect. 46
The Third Circuit, however, held that Stoneking was inapposite because Stoneking's alleged injuries resulted from the actions of a state employee (a high school teacher) while Khemsu's injuries occurred at the hands of a private actor, his mother.4 7
Khemsu then argued that he satisfied the DeShaney exception because a special relationship existed between the Philadelphia defendants and himself.48 Khemsu maintained that the Compact extended Virginia's jurisdiction to Philadelphia and imposed legal duties on the city
and its employees to protect and preserve Khemsu's constitutional rights.4 9 For his argument to prevail, Khemsu was required to show that the Virginia court vested its custodial supervision granted by the Com-

43. 882 F.2d 720 (3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990).
44. McComb, 934 F.2d at 477-78. On appeal, Khemsu argued that DeShaney was not on point because the defendants in his case had "adopted and implemented policies deliberately indifferent to the constitutional rights of children whom the agency was charged to protect." Id. at 477. This theory of liability has been recognized by the Third Circuit in Stoneking. Stoneking, 882 F.2d at 725. For a discussion of the Stoneking holding, see infra note 45 and accompanying text.
45. Stoneking, 882 F.2d at 725. The Stoneking court held that the plaintiff could maintain her § 1983 claim because she "alleged that defendants, with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused her constitutional harm." Id. Stoneking was decided after the Supreme Court remanded the case to allow the Third Circuit to reconsider its decision in light of DeShaney. Id. at 721. The Third Circuit distinguished the causes of action in Stoneking and DeShaney on the ground that "[iliability of municipal policymakers for policies or customs chosen or recklessly maintained is not dependent upon the existence of a 'special relationship' between the municipal officials and the individuals harmed." Id. at 725.
46. McComb, 934 F.2d at 477.
47. Id. at 478. The Third Circuit commented that "[t]he distinction between harm inflicted by a state agent and injury caused by a private individual is critical." Id. In fact, because Khemsu's injuries were inflicted by his mother, a private actor, the Third Circuit found that Khemsu's circumstances "mirror those in DeShaney and differ dispositively from those in Stoneking." Id.
48. Id.
49. Id. Khemsu claimed "that the Virginia court order, together with the Interstate Compact ... created a special relationship between Philadelphia and Khemsu within the exception outlined in DeShaney. . . . [This special relationship] extended the jurisdiction of the Virginia court into Philadelphia so as to impose legal obligations on the City's social workers." Id. at 478. The Third Circuit, however, held that the Virginia court did not have the necessary in personam jurisdiction over the Philadelphia officials to make its order a legal directive in Philadelphia. Id. at 482.

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pact in the Philadelphia defendants, thus creating the necessary special relationship. This question was the focus of the McComb court's analysis.

III. ANALYSIS
The question facing the Third Circuit was whether the Compact ap-
plied where a court in a sending state placed a child with his or her natural parent residing in a different state.50 Although other courts had
addressed this question, it was one of first impression before the Third Circuit.5 ' Lacking Pennsylvania case law guidance, the McComb court
50. Id. at 479. 51. Id. ("No state Supreme Court has analyzed the question in a reasoned opinion, nor has any state appellate court."). Pennsylvania law on the Compact is virtually nonexistent. Only two Pennsylvania cases have mentioned the Compact, but neither case expressly discussed it. See In re K.S., 581 A.2d 659 (Pa. Super. 1990) (natural father claimed Pennsylvania court had jurisdiction to determine custody under terms of the Compact; court declined jurisdiction on alternative grounds); In re B.E.W.G., 549 A.2d 1286 (Pa. Super. 1988) (grandparents seeking to set aside custody agreement entered into by natural father claimed father failed to comply with terms of Compact; decree set aside on other grounds). The lack of litigation on the Compact is somewhat surprising given that Pennsylvania adopted the Compact in 1967. 62 PA. CONS. STAT. ANN. § 761 (Supp. 1992). The Third Circuit stated that it was unable to find any state intermediate appellate or supreme court decisions regarding the issue. McComb, 934 F.2d at 479. At least five courts, however, have addressed the question. Three courts favor application of the Compact to the placement of a child with a natural parent. See Custody of Quincy, 562 N.E.2d 94, 96 (Mass. App. Ct. 1990) (holding that Compact should have been applied when state placed child with natural father living in a different state); State ex rel. Juvenile Dep't of Clackamas County v. Smith, 811 P.2d 145, 147 (Or. Ct. App. 1991) (holding that Compact applies when child placed with mother living out-of-state); In re J.H., 587 A.2d 1009, 1010 (Vt. 1991) (holding that Compact applies when state places child in custody of mother living in another state). One court would apply the Compact to placement with natural grandparents. See In reJ.M.L., 466 So. 2d 571, 572-73 (Fla. Dist. Ct. App. 1984) (holding that placement of children with grandparents who live out of state must comply with Compact). One court opposes application of the Compact to placement with natural parents. See In re Mary L., 778 P.2d 449, 453 (N.M. Ct. App. 1989) (finding that "Article 8 of the Compact expressly exempts from the placement requirements relinquishment of children to a natural parent in another state"). Three state attorney generals have issued opinions advising that the Compact is applicable to placement with natural parents. See 61 Op. Cal. Att'y Gen. 535 (1978) ("Except for the prior notice provisions in article 3 of the Compact, the Compact applies when the juvenile court places a child with a parent in another Compact state."); Op. Nev. Att'y Gen. 88-4 (1988) (sending state retains jurisdiction over child sent out of state to natural parents as "[t]here is nothing in the term 'family free home' which indicates that the home of any particular family or family member is to be excluded"); 52 Op. N.C. Att'y Gen. 97 (1983) ("The child may not be returned to the custody of his parents except as the Interstate Compact on the Placement of Children provides."); cf. Op. Ohio Att'y Gen. 89-092 (1989) (sending state has duty to bear cost of out-of-state public education for child placed out-of-state with relative). Massachusetts and Oregon courts have expressly recognized that the Compact applies to placement of a child with a natural parent. See Quincy, 562

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relied on an analysis of the text of the Compact and regulations promul-
N.E.2d at 96; Smith, 811 P.2d at 147 n.4. The Massachusetts court commented that "when a child who is the subject of an ongoing care and protection case is placed with the agreement and participation of [one state] in another State, the Interstate Compact should be followed to insure that services and treatment continue until they are determined to be no longer necessary." Quincy, 562 N.E.2d at 96. Two weeks prior to McComb decision, the Oregon court held that "[t]he compact does apply to a child who is sent to another state for placement with parents or relatives, when someone other than a parent or relative makes the placement." Smtih, 811 P.2d at 147 n.4. In either of these jurisdictions, Khemsu's placement would have been covered by the Compact, and therefore the special relationship required to impose liability on the receiving state (Pennsylvania) would have been established.
Additionally, the Vermont Supreme Court has implicitly recognized the applicability of the Compact to placement with a natural parent. See In reJ.H., 587 A.2d at 1009-10. Four months prior to McComb, the Vermont court found that the Vermont social services department properly requested a home study from its New York counterpart under the Compact where a mother residing in New York state petitioned Vermont for the return of her child. Id. at 1010. The approach of the Virginia court in McComb paralleled the holdings of the Oregon, Massachusetts and Vermont courts and reveals a belief that the Compact governs the placement of a child with his or her natural parent. See McComb, 934 F.2d at 476-77 (Virginia court followed Compact when returning custody of five Walton children to natural mother, including signing Interstate Compact Appli-
cation Child Placement Request for each child). A Florida district court has held that the placement of two children with
their grandparents, residents of Georgia, was subject to the Compact. In re J.M.L., 466 So. 2d 571, 572-73 (Fla. Dist. Ct. App. 1984). Previously, however, the same appellate court took a different, novel approach to the McComb issue. See In re M.W., 424 So. 2d 56 (Fla. Dist. Ct. App. 1982). In In re M.W., a Florida juvenile court had granted custody of a child to her natural parents who resided in Texas. Id. at 57. The court held that "by granting legal custody, the [lower] court in effect entered an order dissolving M.W.'s dependency status .... It follows, therefore, that M.W.'s case was removed from the proscriptions of the Interstate Compact as the child was no longer one 'requiring placement' for its protection." Id. If the Florida court's reasoning was applied to McComb, the Virginia court's grant of custody to Marie Walton would have dissolved Khemsu's dependency status under the Compact and left him unprotected by its terms. Any grant of custody, however, "dissolves" a child's dependency status with respect to the sending state because the child's custody shifts to another entity. Therefore, applying the Florida court's reasoning would eviscerate the Compact, specifically Article V, which addresses retention of jurisdiction by a sending agency such as a state. For a discussion of Article V of the Compact, see infra notes 58 & 65-66 and accompanying text.
A New Mexico court of appeals case supports the Third Circuit's position. See In re Mary L., 778 P.2d at 453 ("Article 8 of the Compact expressly exempts from the placement requirements relinquishment of children to a natural parent in another state.") For a discussion of a similar interpretation of Article VIII of the Compact by the McComb court, see infra notes 59 & 67-69.
The In re Mary L. holding, however, is distinguishable because in that case the New Mexico Human Services Department (HSD) had never established the superiority of its custody over the mother's claim. In re Mary L., 778 P.2d at 452. In this case, a mother had previously lost custody of her children after her divorce from the children's natural father. Id. at 450-51. The father, in turn, consented to relinquish custody to the HSD following allegations (later proved) of sexual abuse of the children. Id. at 451. The mother was never notified of the consent custody decree. Id. While the mother's custody rights were extin-

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