Relates to contact by siblings in child protective, permanency and termination of parental rights proceedings

As a child or youth in foster care in the State of New York, I have the right:

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4. To live with my brothers and sisters unless the court or my agency has determined it is not in my best interests or those of my brothers or sisters, and to visit with my brothers and sisters regularly if we do not live together unless a court or a caseworker has determined it is not in my best interests or those of one of my brothers or sisters, or their distance from me prevents visitation. Notwithstanding these provisions, New York State law does not clearly delineate the standing of youth to seek visitation or contact with their siblings when either the youth or siblings are in foster care, kinship care or have been adopted. Accordingly, we propose this measure to clarify the criteria and procedures for such youth to seek visitation and/or contact with their siblings. Codifying the OCFS regulation, supra, Family Court Act § 1027-a would be amended to impose a presumption that where siblings are not placed together, the agency must arrange "appropriate and regular" contact unless contact would not be in the child's or the child's siblings' best interests. Use of the term "contact," rather than the narrower term "visitation," acknowledges both the practical constraints presented where long distances separate siblings and the increasingly available and accessible possibilities for electronic contact in between in-person visits. Significantly, application of the best interests standard to the siblings to be visited or with whom contact is sought is consistent with the decision of the Appellate Division, First Department, in Keenan R. v. Julie L., 72 A.D.3d 542 (1St Dept. 2010) (visitation denied where causing anxiety to the siblings, who had no meaningful relationship with applicant).

Further, the proposal amends both Family Court Act §§ 1027-a and 1081 to afford specific standing to youth to seek an order for visitation or contact with siblings and, concomitantly, for siblings to seek orders for visitation or contact with youth in care.{1} Similar to the definition in Public Law 113-183 and the OCFS Administrative Memo, siblings are defined to include "half-siblings and those who would be deemed siblings or half-siblings but for the termination of parental rights or death of a parent." Notice and an opportunity to be heard must be afforded to the respondent and other parent or parents of the youth, the parents or persons having care and custody of the children with whom the youth is seeking visitation or contact, the social services agency, the siblings themselves, if ten years of age or older, and the siblings' attorneys, if any. Affording due process to both the parents of the applicant-child and the parents of the siblings is consistent with the United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57 (2000), which requires that weight be given to the constitutional rights of parents regarding the upbringing of their children. See also, Matter of Coccose v. Diane B., 8 Misc.3d 1020(A) (Fam. Ct., Ulster Co., 2005)(in determining sibling access application, court must evaluate the bases of the parents' objections, in addition to the sibling relationship itself).

The measure provides that placement and permanency hearing orders, issued pursuant to Family Court Act §§ 1055( c) and 1089(d)(2)(viii)(F), respectively, may incorporate §§ 1027-a or 1081 access orders. Moreover, it amends Social Services Law § 384-b to codify the case law that provides that termination of parental rights (and by extension, adoption) does not terminate sibling relationships. This removes any doubt that children may seek contact with siblings under the procedural vehicle of Domestic Relations Law § 71, notwithstanding severance of the children's ties to their parents. This provision is consistent with the Court of Appeals holding in People ex rel Sibley v. Sheppard, 54 N.Y.2d 320 (1981), that grandparent relationships are not severed by adoption, a holding extended to sibling relationships in Hatch on behalf of Angela I v. Cortland County Dept. of Social Services, 199 A.D.2d 765 (3rd Dept. 1993).

It has been estimated that two-thirds of children in foster care also have siblings in care,{2} many of whom are separated for a variety of reasons, including, inter alia, a large sibling group, or mental health, educational or other special needs of one of the siblings, or the fact that one of the siblings is over the age of 18.

Approximately 60 to 73 percent of children adopted from foster care have siblings in care and approximately 40 percent are placed together, with visitation among those separated not provided consistently. {3}

For youth already suffering the trauma of child abuse or neglect and separation from their homes, maintenance of their relationships with their siblings may be a vital lifeline, a protective shield against further trauma, an aid in coping with loss and grief, and essential to development of normal attachments and self-esteem - significantly, often "the most stable and consistent relationship available." See R. Mandelbaum, Delicate

Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain their Relationships Post-Adoption," 41 N.Mex.Law Rev. 1, 29-34 (Spring, 2011); D.Post. S.McCarthy, R.Sherman and S.Bayimli, "Are You Still My Family?: Post-adoption Sibling Visitation," 43 Cap.U.Law Rev. 307, 319-326 (2015). The "Beyond Permanency" Symposium, sponsored by the Children's Law Center at New York Law School on October 23, 2015, as well as the article by Dawn Post, supra, were replete with first-hand accounts of youth who struggled to maintain relationships with siblings, often mentor-type relationships that facilitate the successful adjustment of the siblings. Enactment of this measure, therefore, will not only bring clarity to New York State law but will also provide substantial developmental benefits for the numerous sibling groups in the State's child welfare system.

This measure, which would have no fiscal impact on the State, would take effect 90 days after it shall have become a law and shall apply to petitions filed on or after such date.

Legislative history

None. New proposal.

{1} This provision fills the gap noted by Professor Merril Sobie, in his McKinney's Practice Commentary to Family Court Act § 1085, that is, that "(u)nmentioned in the statutory visitation series (Family Court Act § 1081, et seq.) is the fact that the child and her siblings also enjoy reciprocal visitation rights (see, e.g., § 1055(c))."

{2} Sibling Issues in Foster care and Adoption" (Child Welfare Information Gateway, www.childwelfare.gov/pubPDFs/siblinaissues.pdf) (cited in D.Post, S.McCarthy, R.Sherman and S.Bayimli, "Are You Still My Family?: Post-adoption Sibling Visitation," 43 Cap.U.Law Rev. 307, 336 (2015)).

{3} R. Mandelbaum, Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain their Relationships Post-Adoption," 41 N.Mex.Law Rev. 1, 6 (Spring, 2011).