by Avron Bernstein and Circuit Judge Sue Robbins Overview  Legal framework for protecting sibling connections  Defining a sibling relationship  Recognition of the importance of siblings in Florida law  Advantages of keeping siblings together  What justifies separation of siblings under federal law or Florida law?  When siblings cannot live together; maintaining ties among separated siblings FOSTERING CONNECTIONS  The Fostering Connections to Success and Increasing Adoptions Act of 2008 (Public Law 110- 351) is the first federal law which specifically addresses the importance of keeping siblings together. Section 206 of the Act provides:  REASONABLE EFFORTS  to place siblings removed from their home together unless contrary to their safety or well-being –and-  if separated, provide frequent visitation or other ongoing interaction unless contrary to their safety or well-being Chapter 2014-224, Laws of Florida  SB 1666 in 2014 amended chapter 39 regarding sibling placement:  New subsection 39.402(8)(h)6 added  New subsection 39.402(9)(b) added  New subsection 39.701(2)(c)7 added Fla. Stat. 39.402(8)(h)6  The order for placement of a child in shelter care must find  The DCF has made REASONABLE EFFORTS to keep siblings together if they are removed unless not in the best interest of each child  “It is preferred that siblings be kept together in a foster home, if available.”  Otherwise short-term placement in a group home with ability to accommodate sibling groups if available.  DCF shall report its efforts to place siblings together unless the Court finds not in the best interests Fla. Stat. 39.402(9)(b)  If siblings are removed and cannot be placed together:  The DCF shall provide a recommendation for frequent visitation or other ongoing interaction between the siblings unless contrary to a sibling’s safety or well- being. (See also Florida Rule of Juvenile Procedure 8.305(a)(9))  If visits are ordered but will not begin within 72 hours after shelter hearing, the DCF shall provide justification to the Court for the delay. Fla. Stat. 39.701(2)(c)7  At the judicial review hearing, the court is required to determine:  The frequency, kind, and duration of contacts among siblings who have been separated during placement, as well as any efforts undertaken to reunite separated siblings if doing so is in the best interest of the child.  See also Rule 8.415(f)(1) which contains a parallel provision. Sec. 63.0427 - Agreements for continued communication in adoption case  In an adoption arising from a Chapter 39 TPR, the adoption court may order postadoption communication or contact with the adoptee’s siblings, considering:  (a) Existence of prior orders for communication or contact  (b) Recommendations of the DCF, the foster parents if other than the adoptive parents, and the guardian ad litem.  (c) Statements of the prospective adoptive parents.  (d) Any other information deemed relevant and material by the court.  If ordered, it does not affect the validity of the adoption.  If ordered, it does not affect the ability of the adoptive parents to relocate including out of state.  The adoptive parent may seek a court order terminating the contact later on evidence of detriment to the adoptee. Other Statutes in Florida

• Disposition statute not changed to address siblings • Sibling contact and efforts to reunite siblings must be addressed at JR hearings for separated siblings. Fla. Stat. 39.701(2)(c)(7) • Fla. Stat. 39.001(1)(k) “every possible effort” to keep siblings together and to maintain contact • It is the intent of the Legislature in Sec. 63.022, whenever appropriate, to maintain sibling groups with respect to adoptions. Administrative Regulations Concerning Siblings  Rule 65C-16.002, Fla. Admin. Code  In giving preference as required for the child’s current custodian in choosing an adoptive placement, a consideration is whether the custodian is willing to adopt the child’s siblings  Consideration must be given to the fact that a sibling relationship is the longest lasting relationship for a child and placing siblings together whenever possible preserves the family unit. Rule 65C-16.002(4)(a) Administrative Regulations Concerning Siblings  Rule 65C-16.010, Fla. Admin. Code  Recognizes the difficulty of placing a large sibling group together  Addresses a situation when one child experiences difficulty in placement while the other child or children adjust well  In determining whether to separate the siblings, staff must as a team consider positives and negatives of keeping children together, thoroughly explore, and decide best interests. Contact must be made post- separation Who is a sibling in Florida?  A child who shares a birth parent or legal parent with one or more other children; OR  A child who has lived together in a family with one or more other children whom he or she identifies as siblings Fla. Stat. 39.01(71)

No definition under Chapter 61 or 63. Importance of Siblings Recognized by Florida Courts in DR cases  Children should not be separated from each other and distributed about in different homes except for the most compelling cause. Arons v. Arons, 94 So. 2d 849 (Fla. 1957); Matias v. Matias, 948 So. 2d 1021 (Fla. 2d DCA 2007); Bache v. Bashir, 482 So. 2d 546 (Fla. 4th DCA 1986).  Splitting children among divorcing parents will result in further destruction of what is left, after divorce, of the family unit. Matias v. Matias, 948 So. 2d 1021 (Fla. 2d DCA 2007) Importance of Siblings Recognized by Florida Courts in DR cases  The age of children and geographical proximity of the parents to one another in the same community may be a factor in separating siblings in a dissolution of marriage case. Epperson v. Epperson, 101 So. 2d 367 (Fla. 1958). Importance of Siblings Recognized by Florida Courts in DR cases  Separation of children may be justified under particular circumstances. Thompson v. Thompson, 402 So. 2d 122 (Fla. 5th DCA 1981); Collier v. Collier, 384 So. 2d 697 (Fla. 4th DCA 1980); Miller v. Miller, 371 So. 2d 565 (Fla. 4th DCA 1979); Reinhart v. Reinhart, 291 So. 2d 103 (Fla. 1st DCA 1974).  The preference of the children is a consideration in this regard.  All other statutory factors must also be considered. Importance of Siblings Recognized by Florida Courts in DR cases  Courts prefer to keep siblings together in making custody determinations. Exceptions may exist when children are old enough to express a preference or when it is otherwise in their best interests. Griffith v. Griffith, 627 So. 2d 527 (Fla. 2nd DCA 1993). Importance of Siblings Recognized by Florida Courts in DR cases  When family structures are “complex,” the trial court does not have jurisdiction over all the children and all the parents, there can be no rigid rule requiring half-siblings to remain together in a single residence. Bonding among such siblings will still be an “other fact” to be considered under Sec. 61.13(3)(t). Munson v. Munson, 702 So. 2d 583 (Fla. 2d DCA 1997). Importance of Siblings Recognized by Florida Courts in DR cases  It may be appropriate to separately consider the needs of a special needs child in determining whether to separate siblings. Peacock v. Peacock, 973 So. 2d 501 (Fla. 3d DCA 2008).  Florida law has long recognized a preference for keeping siblings together whenever possible and whenever it is in the best interests of the siblings. Glover v. Glover, 834 So. 2d 927, 929 (Fla. 5th DCA 2003). Importance of Siblings

Florida  When considering adoption placement of a sibling group, recognizes the consideration must include the importance of fact that a sibling relationship is the longest lasting sibling relationship for a child –and- relationships, placing siblings together, e.g., as contained whenever possible, preserves in Florida’s the family unit. Administrative Code:  65 FL ADC 65C-16.002 When Siblings Are Separated (for Adoption) 65 FL ADC 65C-16.002

 Consider the emotional ties existing between and among the siblings.  Consider the degree of harm which each child is likely to experience as a result of separation.  Consider the positives and negatives of keeping the children together.  Short term and long range effects of separation on the children must be addressed in making the decision.  There must be a plan for future contact between children if separation is approved. The plan must be one to which each adoptive parent and caretaker can commit.  If after placement as a sibling group, one child does not adjust to the family, a decision must be made regarding what is best for all of the children. Any decision to pursue separate placements must also include a plan for future contact.  If DCF takes into custody a child who is a sibling to previously adopted children, the DCF must advise the adoptive parents of this occurrence. If this child becomes available for adoption, the adoptive parents of the previously placed sibling must be given an opportunity to apply to adopt this child. Sibling Relationships Special issues for siblings from homes where there has been exposure to violence, chronic neglect, or other abuse. Other statutes consider sibling relationships as “best interests”  Sec. 63.082(6)(e) – in determining best interests for adoption of a child in DCF custody based on parents’ consent, the court is required to consider inter alia “the importance of maintaining sibling relationships, if possible.”  Sec. 39.810(5) – in determining manifest best interests for TPR under Chapter 39, the court must consider “the love, affection, and other emotional ties between the child … and the child’s siblings….” Standing and Enforcement Issues  Siblings do not have standing to object in adoption of their sibling. Sec. 63.022 requirement to “maintain sibling groups” does not confer standing. S.J. ex rel. M.W. v. W.L., 755 So.2d 753 (Fla. 4th DCA 2000). Standing and Enforcement Issues  Child’s siblings had no standing, no constitutionally protected rights, and no enforceable rights under Fostering Connections Act to appeal adoption and resulting separation from siblings. In re the Interest of Meridian H., 798 NW2d 96 (Neb. 2011). Standing and Enforcement Issues  Parents had no enforceable rights under the Fostering Connections Act to file a separate civil action for violations whereby children were removed from Hindi parents, placed in different foster homes, given beef, and taken to Christian worship services. B.K. and S.K. v. New Hampshire Dept. of Health and Human Services, 814 F. Supp. 2d 59 (U.S.D.C. New Hampshire 2011). Keeping Siblings Together  In small sibling groups being removed at the same time, they will generally be placed together unless  They have different fathers and one or more will be placed immediately with father(s)  Legal issues prohibit placement together (e.g., one child in a juvenile detention status)  A sibling is abusive  No placement together is available

Seek kinship placements first because (1) the law requires it and (2) they are generally more open to taking a group Practical Advantages  Case worker, GAL, and service providers are able to attend to all of the children in one location  Visits with parents may be simplified  No need to facilitate sibling visitations Strategies to Preserve Ties Between Separated Siblings  Place siblings with relatives who are relatives to one another or who have a relationship to one another  Place siblings in geographical proximity to one another In addition to arranging for regular visits as required:  Arrange for contact by mail, email, social media, etc.  Arrange for joint outings or joint participation in summer programs  Arrange for joint respite care *The suggestions on the last three slides come from The Child Welfare Information Gateway and are used with permission. FOSTERING SIBLING CONNECTIONS

By Avron Bernstein and Judge Sue Robbins

Although much emphasis over the years has been placed on visitation between parents and their children, visitation and contact between siblings has always been a significant component of dependency cases. Florida caselaw has already acknowledged the importance of sibling contact. Furthermore, recent changes in the law have brought renewed focus to sibling placement and sibling visitation. Both federal law and Florida statutes have been amended to include provisions regarding sibling contact. Accordingly, the Florida Rules of Juvenile Procedure also have been changed to reflect the emphasis on sibling placement and visitation.

The following are examples of a few of the issues which arise for siblings removed from their parents in cases filed under Chapter 39.i In case number one, M.H., now three years of age, was removed from her mother after the death of the man presumed to be the father of M.H. She was placed in foster care, and eventually the mother surrendered M.H. for adoption. The parents’ rights to two older children were terminated before M.H. was born, and those children were adopted. The adoptive parents have petitioned to adopt M.H., but the foster parents, with whom she has lived all her life, have also petitioned to adopt. The mother and maternal grandparents want to see M.H. placed with the adoptive parents so that she may be raised with her siblings. The guardian ad litem and expert witnesses believe that M.H. should remain where she is and be adopted by the foster parents. The court approved the adoption by the foster parents even though it meant that M.H. was permanently separated from her siblings.ii In case number two, B.G.J. was one year old and placed with foster parents when her parents’ rights

1 were terminated. The foster parents sought to adopt. In the meantime B.G.J.’s twin brothers were adopted in a separate home which originally had declined to adopt B.G.J. Although B.G.J. was very well bonded to her foster parents and the trial court approved that home to adopt her, the appellate court reversed this decision based on the department’s decision to place B.G.J. with her siblings for adoption.iii Similarly, M.Z. was removed from her foster care placement and placed with the paternal grandparent of her half-siblings in order to place her with her siblings.

The foster parents were desirous of adoption. However, it does not appear that parental rights had been terminated. Furthermore, there was no indication that M.Z. previously had any sort of relationship with the grandparents of the half-siblings or that the placement in that home would be permanent.iv Procedurally, the order placing M.Z. had been rendered seven months prior to the appeal and so the appellate court had no jurisdiction to review that order.v

Florida has long respected sibling relationships in determining custody, parenting plan, and time sharing issues, and many domestic relations cases over the years have directed that children should not be separated from each other and distributed about in different homes except for the most compelling cause. The Florida Supreme Court held in Arons v. Arons,vi “while brothers and sisters may not have a legal right to remain together, to share each other’s lives, and to grow up together, certainly they have a natural right to do so. Justice requires that society exercise its moral duty to ensure that children in a family enjoy this right until such time as absolute necessity and the welfare of the children, itself, requires their separation.” Because it found no such need for separation of the children in this dissolution of marriage case, it reversed the trial court’s judgment. By contrast, in Matias v. Matias,vii the judgment separating the siblings was approved, where the children had been living separately for the past four years and a plan

2 was in place that enabled the children to see each other every weekend. To similar effect is

Griffith v. Griffith, which clarifies that courts prefer to keep siblings together in making custody determinations, but that exceptions may exist when children are old enough to express a preference or when it is otherwise in their best interests.viii The appellate court reversed a supplemental final judgment placing one sibling with each parent, when one parent lived in

Pakistan and the other lived in Florida.ix Splitting children among divorcing parents results in further destruction of what is left, after dissolution of marriage, of the family unit.x In Glover v.

Glover, the court acknowledged the preference in Florida law for keeping siblings together and noted that it was in the younger sibling’s best interest to be placed with the mother, along with his older sister.xi

Clearly, the age of children, geographical proximity of the parents to one another in the same community, and all other statutory factors must be made in determining a parenting plan and time sharing arrangement under Chapter 61. The older cases, some allowing and some disallowing separation of siblings, may be informative.xii In addition, when family structures are particularly complex, when the trial court does not have jurisdiction over all the children and all the parents, there can be no rigid rule requiring half-siblings to remain together in a single residence. Bonding among such siblings will still be an “other fact” to be considered under Sec.

61.13(3)(t).xiii It may be appropriate to separately consider the needs of a special needs child in determining whether to separate siblings.xiv In Peacock v. Peacock, although one judge would have remanded the case for additional findings of fact and questioned whether the trial court’s decision was in the best interests of the two sisters,xv the majority affirmed the award of custody of the children to the former husband.xvi However, the majority noted that it was unable to agree

3 with the dissenting judge because the parties had not requested that the two daughters be placed separately with the mother.xvii

The Fostering Connections to Success and Increasing Adoptions Act of 2008 (hereafter the

“Fostering Connections Act”)xviii is the first federal law which specifically addresses the importance of keeping siblings together. The Act requires the state agency to make and document reasonable efforts to place siblings removed from their home together unless contrary to their safety or well-being, and, if separated, to provide frequent visitation or other ongoing interaction unless contrary to their safety or well-being.xix Florida has passed similar legislation for cases in which children are removed from their home under Chapter 39.

Section 39.001(1)(k) announces the statutory intent “to make every possible effort, if two or more children who are in the care or under the supervision of the department are siblings, to place the siblings in the same home; and in the event of permanent placement of the siblings, to place them in the same adoptive home or, if the siblings are separated while under the care or supervision of the department or in a permanent placement, to keep them in contact with each other.”xx According to current Florida statutory requirements, as amended in 2014, the judge at a shelter hearing must make written findings that the department has made reasonable efforts to keep siblings together if they are removed and placed in out-of-home care unless such placement is not in the best interest of each child. The statute repeats the legislative preference that siblings should be kept together in a foster home, if available. Other reasonable efforts shall include short-term placement in a group home with the ability to accommodate sibling groups if such a placement is available. The statute requires the department to report to the court its efforts to place siblings together unless the court finds that such placement is not in the best

4 interest of a child or his or her sibling.xxi Similarly, the Florida Rules of Juvenile Procedure contain a parallel provision. Rule 8.305(a)(8) requires that the shelter petition specify the department’s reasonable efforts to keep siblings together (if not currently placed together) after their removal from the home, why a foster home is not available to place the siblings, or why it is not in the best interest for all siblings to be placed together in out-of-home care. Likewise, Rule 8.305(c)(3) requires that the court’s shelter order contain written findings on these same criteria. Rule

8.305(c)(4) requires findings specifying visitation/interaction between siblings or, if that is not recommended, why visitation/interaction would be contrary to the children’s safety or well- being. It is noted that the Florida statutes require a showing that siblings are separated because placement together is not in the best interest of one or more of them, while the federal statute disallows separation unless placement together is contrary to one or more of the children’s safety or well-being. Cases have not been decided on this point. However, it appears that the Florida

Statute allows much broader grounds to separate siblings than is contemplated under the federal statute. A best interest analysis includes positive as well as negative considerations.

Other Florida Statutes, not only those to which the Fostering Connections Act apply or those involving removal of children from their home under Chapter 39, reflect the importance of sibling relationships. For example, Sec. 63.022 recites the intent of the Legislature whenever appropriate, to maintain sibling groups with respect to adoptions. Section 63.082(6)(e) provides that, in determining best interests for adoption of a child in department custody based on parents’ consent, the court is required to consider inter alia “the importance of maintaining sibling relationships, if possible.”

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Also under Chapter 63, in an adoption arising from a Chapter 39 TPR, the adoption court may order postadoption communication or contact with the adoptee’s siblings.xxii In making such a ruling, the adoption court must consider:

(a) The existence of prior orders for communication or contact.

(b) The recommendations of the department, the foster parents if other than the adoptive parents, and the guardian ad litem.

(c) The statements of the prospective adoptive parents.

(d) Any other information deemed relevant and material by the court.

If such contact is ordered, a subsequent breach of the order expressly does not affect the validity of the adoption. Furthermore, if such contact is ordered, it does not affect the ability of the adoptive parents to relocate including out of state. The adoptive parent may seek a court order terminating the contact later on evidence of detriment to the adoptee.xxiii

Although not expressly defined under Chapters 61 or 63, the term “sibling” was defined under Chapter 39 in 2014 to give it a very broad definition similar to that in the Fostering

Connections Act. A “sibling” is a child who “shares a birth parent or legal parent” with one or more other children, and is also a child who has “lived together in a family” with one or more other children whom he or she “identifies as a family.” This definition is broad enough to include a step-sibling, adopted sibling, foster sibling, or another child who lived in the home and formed a sibling-type relationship. This definition has not been added to the Florida Administrative Code to date.

Additional statutory amendments in 2014 require that sibling contact and efforts to reunite siblings must be addressed at judicial review hearings for separated siblings.xxiv

Specifically, the court (or citizen review panel) must seek to determine “the frequency, kind, and

6 duration of contacts among siblings who have been separated during placement, as well as any efforts undertaken to reunite separated siblings if doing so is in the best interest of the child.”xxv

The Florida Rules of Juvenile Procedure were amended to include a corresponding identical requirement at the judicial review hearing.xxvi Therefore, the court has an affirmative obligation to inquire into sibling contact at each judicial review hearing. On the other hand, the disposition statute was not changed to address sibling issues. Section 39.810(5) also directs, in determining manifest best interests for TPR under Chapter 39, the court must consider “the love, affection, and other emotional ties between the child … and the child’s siblings….” With the very broad new definition of sibling under Chapter 39, this could effect a significant change in the manifest best interest analysis. For example, the relationship between the child and the children he regards as his siblings in his out-of-home placement would now be a proper statutory consideration.

Siblings do not have standing to object in an adoption of their sibling. The requirement contained in Section 63.022 to “maintain sibling groups” does not confer standing on the adoptee’s sibling.xxvii Similarly a child’s siblings were found to have no standing, no constitutionally protected rights, and no enforceable rights under Fostering Connections Act to appeal an adoption and resulting separation of the siblings.xxviii

In another case in which procedural and substantive rights were analyzed, Hindi parents were found to have no enforceable rights under the Fostering Connections Act to file a separate civil action for violations whereby their children were removed, placed in different foster homes, given beef contrary to the family’s religious beliefs, and taken to Christian worship services.xxix

Although many of the Florida statutory provisions concerning siblings are very new, and there are surprisingly few cases under the Fostering Connections Act, it is clear that placement

7 of siblings together and maintaining contact among siblings is a more important consideration than ever. In ensuring compliance with the law, the following observations may be useful. When a sibling group is small and all of the children are removed at the same time, they will generally be placed together. Exceptions may be when the children have different fathers and one or more will be placed immediately with a father, when there are legal issues from another case which prohibit placement together (e.g., one child has a juvenile detention status), or when one sibling has a history of being abusive to another.

In an effort to keep the children together, it will be necessary to seek kinship placements first because (1) the law requires it and (2) they may generally be more open to taking a sibling group. Such a placement, even if it requires additional services or a safety plan may be preferable if it keeps the children together. The case worker, GAL, and service providers will be able to attend to all of the children in one location, arranging visits with parents will be simplified, and there will be no need to facilitate sibling visitations.

If siblings must be separated, there are still strategies that may help maintain the relationships between them and comply with the requirements on the part of the department to facilitate contact. Placing siblings with relatives who are relatives to one another or who have a relationship to one another may encourage more frequent visitation and contact, while also potentially maintaining important family relationships for the children. Placing siblings in geographical proximity to one another is another alternative if available.

In addition to arranging for regular visits as required under the statute, the family care manager should attempt to arrange for contact between the siblings by mail, email, social media, etc. The family care manager may also (depending on the circumstances) arrange for joint outings

8 or joint participation in summer programs such as camps and activities, or arrange for joint respite care.xxx

As case law develops further, we can expect to see more of the kinds of cases discussed in at the outset, but also more guidance in how best to address the needs of children.

i Except as otherwise noted, all statutory references are to Florida Statutes (2015). ii In the Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011). iii DCF v. M.W., 819 So. 2d 984 (Fla. 4th DCA 2002). iv GALP v. DCF, 936 So. 2d 1183 (Fla. 5th DCA 2006). v Id. at 1184. The court also cited § 39.001(1)(k), Florida Statutes in support of finding no abuse of discretion by the trial court. vi 94 So. 2d 849, 853 (Fla. 1957). vii 948 So. 2d 1021 (Fla. 2d DCA 2007). viii Griffith v. Griffith, 627 So. 2d 527 (Fla. 2nd DCA 1993). ix Bache v. Bashir, 482 So. 2d 546 (Fla. 4th DCA 1986). x Arons, 94 So. 2d at 853. xi Glover v. Glover, 834 So. 2d 927, 929 (Fla. 5th DCA 2003)(The younger sibling was developmentally disabled and his older sister had to assume a caretaker role to help her brother with basic needs). xii See, for example, Epperson v. Epperson, 101 So. 2d 367 (Fla. 1958); Thompson v. Thompson, 402 So. 2d 122 (Fla. 5th DCA 1981); Collier v. Collier, 384 So. 2d 697 (Fla. 4th DCA 1980); Miller v. Miller, 371 So. 2d 565 (Fla. 4th DCA 1979); Reinhart v. Reinhart, 291 So. 2d 103 (Fla. 1st DCA 1974). xiii Munson v. Munson, 702 So. 2d 583 (Fla. 2d DCA 1997). xiv Peacock v. Peacock, 973 So. 2d 501 (Fla. 3d DCA 2008). xv Id. at 503. xvi Id. at 502. xvii Id. xviii Pub. L. No. 110-351. xix 42 U.S.C. Sec. 671(a)(15) and (31). xx § 39.001(1)(k) as amended by Ch. 2014-224, Laws of Florida. xxi § 39.402(8)(h)6 as amended by Ch. 2014-224, Laws of Florida. xxii § 63.0427. xxiii Id. xxiv § 39.701(2)(c)(7), Fla. Stat. xxv Id. xxvi Florida Rule of Juvenile Procedure 8.415(f). xxvii S.J. ex rel. M.W. v. W.L., 755 So.2d 753 (Fla. 4th DCA 2000). xxviii In re the Interest of Meridian H., 798 N.W. 2d 96 (Neb. 2011). xxix B.K. and S.K. v. New Hampshire Dept. of Health and Human Services, 814 F. Supp. 2d 59 (U.S.D.C. New Hampshire 2011). xxx These suggestions come from the Child Welfare Information Gateway and are used with permission.

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