ROGERS

Don M. Hodgdon, New London, for the appellant (respondent father). Tammy Nguyen–O'Dowd, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).
Christine Perra Rapillo, Annette R. Appell and Josh Gupta–Kagan filed a brief for the Center for Children's Advocacy, Inc., et al., as amici curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

ROGERS, C.J.

The primary issue in this case is whether the Interstate Compact on the Placement of Children (compact), General Statutes § 17a–175, applies to the placement of children with an out-of-state noncustodial parent. The respondent father and his minor children, Emoni W. and Marlon W. (children), appealed to the Appellate Court from the ruling of the trial court that the compact applied to the placement of the children with the respondent, even though he was the children's noncustodial parent. Thereafter, the trial court awarded physical custody of the children to the respondent. A majority of the Appellate Court concluded that the appeals were moot and, accordingly, dismissed them for lack of subject matter jurisdiction. In re Emoni W., 129 Conn.App. 727, 736, 21 A.3d 524 (2011). This court then granted the respondent's petition for certification to appeal to this court, limited to the following issues: (1) “Did the Appellate Court properly dismiss the appeal as moot?”; and (2) “If the answer to the first question is in the negative, does ... § 17a–175 apply to an out-of-state, noncustodial parent?” In re Emoni W., 302 Conn. 917, 27 A.3d 369 (2011). We conclude that the respondent's appeal is moot, but falls within the “capable of repetition, yet evading review” exception to the mootness doctrine. Accordingly, we conclude that the Appellate Court improperly dismissed the appeal. We further conclude that the trial court improperly determined that § 17a–175 applies to out-of-state, noncustodial parents.

The Appellate Court's majority opinion sets forth the following facts and proceduralhistory. “The petitioner, the commissioner of children and families, became involved with the children because on April 28 and May 19, 2010, their mother failed to provide adequate supervision of them. On July 9, 2010, the mother was arrested and charged with four counts of risk of injury to a child, possession of crack cocaine with intent to sell, possession of marijuana with intent to sell, possession of a hallucinogenic with intent to sell and operating a drug factory. Also on July 9, 2010, the children were removed from the mother's home under a ninety-six hour hold pursuant to General Statutes § 17a–101g.

“On July 12, 2010, the court granted the petitioner's ex parte motions for orders of temporary custody as to the children. On this date, the petitioner, for the first time, became aware of the respondent. The petitioner learned that the respondent was living in Pennsylvania and that he previously had been responsible for the children's care for extended periods of time during school holidays. The petitioner also became aware that the respondent wanted to have the children live with him after their mother had been arrested.

“On July 16, 2010, a preliminary hearing was held concerning the petitioner's orders [of] temporary custody. At this hearing, the respondent argued that § 17a–175 did not apply to him as a noncustodial parent and requested that the court allow him to take custody of the children. The court did not rule in response to the respondent's request but, instead, scheduled oral argument on the issue of whether § 17a–175 applied to an out-of-state, noncustodial parent. [The court also ordered the petitioner to initiate a study pursuant to the compact to determine if a proposed placement with the respondent in Pennsylvania would be contrary to the interests of the children.] On July 23, 2010, the court concluded that § 17a–175 does apply to the placement of children with out-of-state, noncustodial parents. The children and the respondent filed separate appeals from this decision on July 30 and August 5, 2010, respectively.

“At a hearing on September 16, 2010, the [trial] court reported that it received the results of the compact study, authorizing placement of the children with the respondent in Pennsylvania on the condition that the court order six months of protective supervision. On this same date, the court adjudicated the children neglected and granted joint legal custody of the children to the respondent and the mother with physical custody in the respondent. The court also ordered protective supervision for a period of six months with the respondent. At the time of oral argument in [the Appellate Court], the children were living with the respondent.” In re Emoni W., supra, 129 Conn.App. at 729–31, 21 A.3d 524.

After the trial court awarded physical custody of the children to the respondent, the Appellate Court, sua sponte, ordered the parties to submit supplemental briefs addressing whether the claims raised by the respondent and the children in their appeals were moot and, if so, whether they fell within the “capable of repetition, yet evading review” exception to the mootness doctrine. Id., at 731, 21 A.3d 524. The majority of the Appellate Court ultimately concluded that the claims were moot and that they did not fall within that exception to the mootness doctrine because there was not a “strong likelihood that the inherently limited duration of the action will cause a substantial majority of cases raising the same issue to become moot prior to final appellate resolution.” (Internal quotation marks omitted.) Id., at 735, 21 A.3d 524. Accordingly, the Appellate Court dismissed the appeals for lack of subject matter jurisdiction. Id., at 736, 21 A.3d 524.

Thereafter, the respondent brought this certified appeal claiming that: (1) the majority of the Appellate Court improperly determined that his appeal did not fall within the “capable of repetition, yet evading review” exception to the mootness doctrine; and (2) the trial court improperly determined that § 17a–175 applies to out-of-state noncustodial parents.

I

We first address the respondent's claim that the majority of the Appellate Court improperly determined that his appeal did not fall within the “capable of repetition, yet evading review” exception to the mootness doctrine. We agree with the respondent.

“Our cases reveal that for an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, 233 Conn. 370, 382–83, 660 A.2d 323 (1995).

In the present case, there is no dispute that the second and third prongs of this test have been satisfied. The dispute is over whether, in the substantial majority of cases, the claims that, (1) § 17a–175 does not apply to out-of-state parents, and (2) if it does, the statute is unconstitutional, will evade review because those claims will become moot before the appeal is concluded. The Appellate Court concluded that the statutory question will not evade review because “the receiving state disapproves of the placement of a child with the noncustodial parent almost half of the time that a compact study is requested. In these situations where placement is denied, any order by the court applying § 17a–175 to out-of-state, noncustodial parents will not become moot.” (Emphasis in original.) In re Emoni W., supra, 129 Conn.App. at 735, 21 A.3d 524.

We agree with the Appellate Court that the statutory question of whether § 17a–175 applies to out-of-state parents does not meet the “evading review” requirement because a substantial number of cases in which that issue arises, namely, those in which the placement is denied, will not become moot before the appeal can be concluded. We also conclude, however, that the constitutional claim raised by the respondent in the present case meets this requirement. Specifically, the respondent claims that, when the placement of a child with a parent is approved pursuant to the recommendation of a compact study, the application of § 17a–175 to the parent violates substantive due process principles by interfering with the parent-child relationship during the period between the date that the study was ordered and the date that placement is approved, which is a more protracted period than it would be if the petitioner conducted an investigation into parental fitness. If this court were to hear an appeal in a case in which placement was denied on the basis of a study ordered pursuant to § 17a–175, the court could conclude that the statute applies, and it also could address any claim that the statute violates procedural due process principles because, for example, it does not provide any opportunity for judicial review of the compact study. The court would not be able, however, to reach the substantive due process claim raised by the respondent in the present case, namely, that his right to act as a parent was unduly delayed, because that claim could not be raised by a parent who never obtains custody of the child because placement has been denied altogether. In other words, the respondent's due process claim is based on the delay in being able to parent his children because of the time that it takes to conduct the compact study before approval, and a parent who is denied custody altogether would not be able to make such a claim because the placement is denied, not delayed.

The record reveals that, in the last six years, there have been 180 cases in which compact studies were ordered and placement with the parent was approved. In 148 of those cases, or 82 percent, approvals were made within 135 days after the study was ordered, which is a conservative estimate of the time required to prepare an appeal for oral argument. Accordingly, we conclude that the respondent's substantive due process claim meets the “evading review” requirement because it will become moot in the “substantial majority” of those cases in which it can be raised, and resolution of the statutory interpretation claim is a necessary pre-requisiteto our resolution of the constitutional claim. See Loisel v. Rowe, supra, 233 Conn. at 382, 660 A.2d 323 (claim meets “evading review” requirement if “the effect of the challenged action, by its very nature [is] of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded”).

II

We turn, therefore, to the respondent's claim that § 17a–175 does not apply to out-of-state noncustodial parents. We agree.

Whether § 17a–175 applies to out-of-state noncustodial parents is a question of statutory interpretation subject to plenary review. See State ex rel. Gregan v. Koczur, 287 Conn. 145, 152, 947 A.2d 282 (2008). “In making such determinations, we are guided by fundamental principles of statutory construction. See General Statutes § 1–2z; Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075 (2008) ( [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ...).” (Internal quotation marks omitted.) In re Matthew F., 297 Conn. 673, 688, 4 A.3d 248 (2010).

“We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise....” (Internal quotation marks omitted.) Wiseman v. Armstrong, 295 Conn. 94, 100, 989 A.2d 1027 (2010); see also General Statutes § 1–1(a) (“[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language”). In addition, “[w]e often have stated that, when the ordinary meaning [of a word or phrase] leaves no room for ambiguity ... the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 150, 989 A.2d 593 (2010).

We begin our analysis with the language of the statute. Section 17a–175, article III(a), provides in relevant part: “No sending state 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 shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state....” (Emphasis added.)

We conclude that the ordinary meaning of the phrase “for placement in foster care or as a preliminary to a possible adoption” as used in § 17a–175, article III(a), does not encompass placement with a noncustodialparent. Children in the care of their own parents are not in “foster care” in any ordinary sense of that phrase, and parents are not required to adopt their own children.

In support of the claim that, contrary to our conclusion, article III(a) of the compact does apply to out-of-state parents, the petitioner contends that: (1) our interpretation is inconsistent with the purpose of § 17a–175, which is to provide each child requiring placement with “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”; General Statutes § 17a–175, article I(a); (2) considered in the context of the entire statute, the phrase “placement in foster care” encompasses any placement by a court; (3) our interpretation is inconsistent with § 17a–175, article VIII; and (4) our interpretation is inconsistent with the relevant regulations.

We first address the petitioner's claim that our conclusion that § 17a–175 does not apply to out-of-state noncustodial parents is inconsistent with the overall purpose of the statute. Although we agree that, in light of the compact's goal of ensuring the placement of a child in a suitable environment, the drafters reasonably could have applied the compact to out-of-state parents, nothing in the express language of § 17a–175 indicates that that is what they actually did. Moreover, it is reasonable to conclude that the drafters determined that the statute should not be applied to out-of-state parents in light of the constitutionally based presumptions that parents generally are fit and that their decisions are in the child's best interests. See Fish v. Fish, 285 Conn. 24, 44, 939 A.2d 1040 (2008) (“in light of the presumption of parental fitness ... parents should not be faced with unjustified intrusions into their decision-making” [internal quotation marks omitted] ); DiGiovanna v. St. George, 300 Conn. 59, 70–71, 12 A.3d 900 (2011) (“courts must presume that fit parents act in the best interests of their children, and that so long as a parent adequately cares for his or her children [i.e., is fit], there will normally be no reason for the [s]tate to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children” [internal quotation marks omitted] ). Also, as we discuss more fully later in this opinion, the petitioner has the authority and the responsibility to investigate whether the placement of a particular child with an out-of-state parent would be consistent with the public policy goals underlying the compact when the child is under the petitioner's care and supervision and there is evidence rebutting the presumption of fitness. Accordingly, we reject this claim.

We next address the petitioner's argument that, considered in the context of the entire statute, the phrase “placement in foster care” was clearly intended to encompass any placement by the court. In support of this argument, the petitioner points to article I(a) of § 17a–175, which provides that “[e]ach child requiring placement shall 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.” (Emphasis added.) The petitioner argues that, as used in article I(a), “persons” includes parents. As we have indicated, however, the language of § 17a–175, article III(a), plainly and unambiguously limits the application of that article to “placement in foster care or as a preliminary to a possible adoption....” As we also have suggested, it is reasonable to conclude that this limitation is premised on the notion that parents are presumed to be able to provide a “suitable environment” for their children and to have “appropriate qualifications and facilities” for raising them. General Statutes § 17a–175, article I(a). If the drafters had intended § 17a–175, article III, to apply to placements with all “persons,” including parents, they easily could have used that language in that article.

The petitioner also relies on article V of § 17a–175, which provides that the “sending agency” retains jurisdiction over children who have been placed pursuant to the statute until certain events occur. As we have indicated, however, there is nothing in the language of § 17a–175 that suggests that the “sending agency” is authorized to apply the provisions of the compact to an out-of-state parent in the first instance. Moreover, it is apparent that the provisions of § 17a–175, article V, were designed to apply to cases in which a child is in foster care or is going to be adopted. For example, it seems highly unlikely that the drafters would have intended that agencies, like the petitioner in the present case, would “continue to have financial responsibility for support and maintenance of the child during the period of the placement” when a parent obtains custody of the child. Finally, although the petitioner does not have jurisdiction over an out-of-state parent under the compact, as we more fully discuss later in this opinion, when a child is under the care and supervision of the petitioner based on allegations of parental neglect, the petitioner has the authority to investigate the fitness of an out-of-state parent, to retain custody of or supervisionover the child during the investigation, and to request conditions on the parent's custody, including protective supervision by the petitioner or by the analogous agency in the receiving state. See footnote 13 of this opinion. Accordingly, the petitioner necessarily has the power to maintain jurisdiction over the child sufficient to ensure compliance with any conditions. We therefore reject this claim.

We also reject the petitioner's claim that our interpretation of § 17a–175, article III(a), somehow renders article VIII(a) of the statute superfluous. The petitioner appears to contend that, because article VIII(a) exempts from the operation of the statute parents and other expressly enumerated persons, not including the petitioner, who leave a child with certain other enumerated persons, including parents, in a receiving state, our interpretation that § 17a–175never applies when a child is being placed with a parent swallows this exemption. Article VIII(a) still provides an exemption, however, whenever a parent or other enumerated person leaves a child with a person who is not a parent and who otherwise would be characterized as a foster parent subject to the provisions of the statute. Accordingly, our interpretation of § 17a–175 does not render article VIII superfluous.

We next address the petitioner's contention that our interpretation is inconsistent with the regulations that implement the compact. Article VII of § 17a–175 provides in relevant part that “[t]he executive head of each jurisdiction party to this compact shall designate an officer who ... acting jointly with like officers of other party jurisdictions, shall have power to promulgate rules and regulations to carry out more effectively the terms and provisions of this compact.” Pursuant to this provision, the Association of Administrators of the Interstate Compact on the Placement of Children (association) promulgated a regulation that provides in relevant part: “[I]f [twenty-four] 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), the care is foster care.” Association of Administrators of the Interstate Compact on the Placement of Children Regulation 3(5) (June 2010). Regulation 3(6)(b) of the association's regulations provides: “The [c]ompact 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 court transfers the child.”

Even if we were to assume, however, that the association's regulations generally have the force of law, we agree with Judge Bishop's argument in his dissenting opinion that association regulation 3(5) and (6)(b) are invalid because they impermissibly expand the scope of article III of § 17a–175. See In re Emoni W., supra, 129 Conn.App. at 742–43, 21 A.3d 524 ( Bishop, J., dissenting); Giglio v. American Economy Ins. Co., 278 Conn. 794, 806–807, 900 A.2d 27 (2006) (“regulations are presumed valid and, unless they are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute” [emphasis added; internal quotation marks omitted] ); see also McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir.1991) (applicable version of association regulation 3 is “of no effect” because it is inconsistent with article III of compact).

Finally, it is essential to note that both the respondent and the petitioner agree that, if a child is in the custody of the petitioner, an out-of-state parent must appear at the preliminary hearing concerning the placement of the child, answer questions and agree to reasonable conditions on the placement of the child with the parent. Moreover, when there is evidence before the court that an out-of-state noncustodial parent is unfit, the parties agree that the court should not place a child with the parent without ordering an investigation into the parent's fitness. They disagree only about whether the petitioner can conduct that investigation or, instead, the analogous agency in the receiving state must conduct it pursuant to § 17a–175. At oral argument before this court, the petitioner conceded that she has the authority and the ability to conduct an investigation of an out-of-state parent, although she might encounter difficulties that would not be present in cases in which she investigates a parent who is living in state. Indeed, our statutes provide a panoply of procedures to ensure that a child under the care and supervision of the petitioner is not placed in the custody of an unfit parent and that, if a parent is granted custody, there can be continued protective supervision. Accordingly, our conclusion in the present case that § 17a–175 does not apply to out-of-state parents does not leave the trial court or the petitioner without a remedy when faced with evidence that an out-of-state parent is unfit.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to sustain the respondent father's appeal, and to remand the case to the trial court with direction to reverse the judgment determining that § 17a–175 applies to the respondent. In this opinion NORCOTT, PALMER, EVELEIGH and HARPER, Js., concurred.

McLACHLAN, J., with whom ZARELLA, J., joins, dissenting.

I respectfully disagree with the majority's conclusion that this court has subject matter jurisdiction over this appeal and would instead dismiss the appeal as moot. Accordingly, I dissent.

Everyone—including the parties, the Appellate Court, the majority and myself—approaches the jurisdictional question from the same starting point. Because the respondent father (respondent) has custody of his minor children, Emoni W. and Marlon W., the issue of whether the Interstate Compact on the Placement of Children (compact), General Statutes § 17a–175, applies to an out-of-state, noncustodial parent is moot. The only question is whether the appeal falls under the “capable of repetition, yet evading review” exception to the mootness doctrine, thus permitting us to reach the merits. Because it is clear that this issue will not evade review, I conclude that the exception does not apply.

A brief review of the principles underlying the mootness doctrine is helpful in an analysis of this issue. “Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve.” (Internal quotation marks omitted.) Private Healthcare Systems, Inc. v. Torres, 278 Conn. 291, 298, 898 A.2d 768 (2006). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). “[C]ourts are called upon to determine existing controversies ... and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law....” (Internal quotation marks omitted.) Private Healthcare Systems, Inc. v. Torres, supra, at 299, 898 A.2d 768. See also Moshier v. Goodnow, 217 Conn. 303, 306, 586 A.2d 557 (1991).

We discussed the capable of repetition, yet evading review exception to the mootness doctrine at length in Loisel v. Rowe, supra, 233 Conn. at 378–88, 660 A.2d 323, explaining: “[F]or an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” (Internal quotation marks omitted.) Id., at 382–83, 660 A.2d 323.

No one disputes that the question of whether the compact applies to out-of-state, noncustodial parents is capable of repetition, or that the question is one of public importance. The second and third prongs of the test, therefore, are not at issue in this appeal. Instead, the jurisdictional question centers on whether the action is likely to evade review, that is, whether it is of an inherently limited duration such that a substantial majority of cases raising this issue will become moot before being resolved on appeal. I cannot agree with the majority's conclusion that this issue will evade review in a substantial majority of future cases.

In its analysis of the first prong of the capable of repetition, yet evading review test, the majority begins by observing that the respondent raises two separate issues in his challenge to the application of the compact to him. He first claims that, as a matter of statutory construction, the legislature did not intend the compact to apply to out-of-state, noncustodial parents. In the alternative, he contends that if the legislature did so intend, application of the compact to him violated his right to substantive due process by interfering with the parent-child relationship during the period between the date that the home study was ordered and the date that placement of the children was approved. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (citing to principle that fourteenth amendment of federal constitution “includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests” and recognizing that “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this [c]ourt” [internal quotation marks omitted] ). The majority concedes that the statutory construction issue will not evade review because a parent who is found to be unfit by a receiving state may challenge the validity of that finding by claiming that the legislature did not intend the compact to apply to out-of-state, noncustodial parents. Because such a parent presumably will be denied custody as a result of the negative results of the home study, the case will not be moot and we will have the opportunity to review the issue. By contrast, at least according to the majority, the substantive due process issue will evade review because an unfit parent could not raise that issue in challenging the application of the compact to him. Therefore, because only fit parents may raise the substantive due process challenge to the application of the compact to out-of-state, noncustodial parents, and because those parents are likely to have obtained custody of the children before the conclusion of the appeals process, the majority concludes that the capable of repetition, yet evading review exception applies to the present case.

The majority's analysis is grounded on several unfounded assumptions. The first and most basic is the incorrect assumption that an out-of-state, noncustodial parent may challenge the application of the compact to him only after the receiving state has conducted a home study. The majority ignores an alternative available procedural avenue that an out-of-state, noncustodial parent could pursue: refuse to consent to the home study and seek a declaratory judgment that the compact does not apply to out-of-state, noncustodial parents. As one of the bases for the declaratory judgment action, the parent would be free to raise the substantive due process claim that the majority claims will evade review.

Moreover, even if I accepted the majority's assumption that an out-of-state parent could challenge the application of the compact only after submitting to a home study—which I do not—it simply is not true that parents who are declared unfit by the receiving state would be unable to raise the constitutional challenge on which the majority relies to conclude that the present case fits the exception. The majoritycontends that, because a parent who is denied custody by the receiving state never receives custody, that parent cannot claim that application of the compact to him violated substantive due process by delaying his right to act as a parent. There are two suppositions in the majority's reasoning that are unfounded. First, the majority's analysis appears to presume that the receiving state's determination that a parent is unfit will somehow preclude that parent from challenging that determination. A purportedly “unfit” parent would be free, however, both to challenge the authority of the receiving state to make any finding regarding that parent's fitness, and to contest the finding on its merits. In other words, the “unfit” parent could claim that the finding of unfitness was void because the receiving state had no legal authority to conduct a home study, and presumably simultaneously would contend that the receiving state improperly found that the parent was unfit. Consistent with both of these legal theories, that parent certainly could raise the very same substantive due process claim raised by the respondent in the present action.

Second, the majority's analysis suggests that there is a meaningful difference between a substantive due process claim predicated on an outright denial of the right to parent one's child and the same constitutional claim predicated on a delay in exercising that right. As I have already explained, a parent who is denied custody because he has been found unfit by the receiving state may appeal that finding in the process of challenging the application of the statute to him. To suggest that a substantive due process claim lies in connection with a temporary interference with the right to parent, but does not lie in connection with the wholesale denial of that right, simply makes no sense. Surely, the distinction between the two claims is simply the legal theory on which the substantive due process challenge is based. The two different legal theories—violation predicated on delay or outright denial—present the same issue, namely, whether the application of the compact to out-of-state, noncustodial parents violates substantive due process. Unquestionably, therefore, parents who are denied custody as a result of a negative home study by the receiving state would be able to raise the substantive due process challenge. Accordingly, there is no basis to distinguish between the two groups, and the constitutional issue will not evade review.

That this issue will not evade review is evident in the numerous decisions from appellate courts across the country that have addressed the question of whether the compact applies to out-of-state, noncustodial parents. Jurisdictions that have concluded that the compact does apply to out-of-state, noncustodial parents include Alabama, Arizona, Delaware, Florida, Massachusetts, Mississippi, New York and Oregon. Jurisdictions that have concluded that the compact does not apply to out-of-state, noncustodial parents include the United States Court of Appeals for the Third Circuit, Arkansas, California, New Hampshire, New Jersey, North Carolina and Washington. Although my research has not revealed a case in which a parent challenged the application of the compact on the basis of substantive due process, that does not mean that the claim may not be raised. The sheer number of appellate courts that have reached and resolved the question of whether the compact applies to out-of-state, noncustodial parents calls into question the majority's conclusion that this issue will evade review. Courts in numerous jurisdictions have addressed the merits of this issue and, when an appeal comes before this court presenting a live controversy on this issue, this court will have jurisdiction to weigh in on the issue. Because jurisdiction does not exist in the present appeal, I would dismiss the appeal as moot.

Accordingly, respectfully, I dissent.