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THE POLICY BEHIND THE LAW

The Federal Mandate

The "Fostering Connections to Success and Increasing Adoptions Act," 42 U.S.C.A. §671 (2009), provides that reasonable efforts shall be made:

1. “to place siblings removed from their home in the same foster care, kinship, guardianship, or adoptive placement, unless the State documents that such a joint placement would be contrary to the safety or well-being of any of the siblings; and
2. in the case of siblings removed from their home who are not so jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless the State documents that frequent visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings.”

"Significantly, Congress did not just recognize this important relationship, it imposed a strong obligation on the states to ensure that visitation between siblings occurs while they are in foster care as well as afterward. Fostering Connections specifically conditions the states’ receipt of federal funding on their reasonable efforts to ensure sibling contact once a child has been removed from his or her home and thereafter."

Mandelbaum, Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain Their Relationships Post-Adoption, (2011) 41 New Mexico L. Rev. 1, 10;
Rutgers School of Law-Newark Research Paper No. 084.
http://ssrn.com/abstract=1734401 [as of February 2, 2012].

The California Legislature’s Statement of Intent

1. "It is the intent of the Legislature to maintain the continuity of the family unit, and ensure the preservation and strengthening of the child’s family ties by ensuring that when siblings have been removed from their home, either as a group on one occurrence or individually on separate occurrences, the siblings will be placed in foster care together unless it has been determined that placement is not in the best interest of one or more siblings. . . .
2. The responsible local agency shall make a diligent effort in all out-of-home placements of dependent children, including those with relatives, to place siblings together in the same placement, and to develop and maintain sibling relationships. . . .
   When placement of siblings together in the same home is not possible, a diligent effort shall be made, and a case plan prepared, to provide for ongoing and frequent interaction among siblings until family reunification is achieved, or, if parental rights are terminated, as part of developing the permanent plan for the child. If the court determines by clear and convincing evidence that sibling interaction is contrary to the safety and well-being of any of the siblings, the reasons for the determination shall be noted in the court order, and interaction shall be suspended.
3. When there has been a judicial suspension of sibling interaction, the reasons for the suspension shall be reviewed at each periodic review hearing. . . .
   When the court determines that sibling interaction can be safely resumed, that determination shall be noted in the court order and the case plan shall be revised to provide for sibling interaction."
4. Any person who wishes to assert a sibling relationship with a dependent may petition the court to do so (See Petitioning the Court to Assert a Sibling Relationship, below).
5. If parental rights are terminated and the court orders adoption, the agency "shall take all of the following steps to facilitate ongoing sibling contact, except . . . where the court determines by clear and convincing evidence that sibling interaction is contrary to the safety or well-being of the child:
   • Include in the training provided to prospective adoptive parents information about the importance of siblings relationships to the adopted child and counseling on methods for maintaining sibling relationships.
   • Provide prospective adoptive parents information about siblings of the child . . .
   • Encourage prospective adoptive parents to make a plan for facilitating postadoptive contact between the child . . . and any siblings of this child.”

*Welfare & Institutions Code §§6002(a)–(e)

SIBLINGS DEFINED

". . . ‘sibling’ means a child who is related to another person by blood, adoption, or affinity through a common legal or biological parent."
*Welfare & Institutions Code § 362.1(c); 16002(g)

"Affinity means the connection existing between one spouse or domestic partner and the blood or adoptive relatives of the other spouse."
*Cal Rule of Court 5.502(1)

"Sibling group means two or more children related to each other by blood, adoption, or affinity through a common legal or biological parent."
*Cal Rule of Court 5.502(30)

The termination of parental rights in a juvenile dependency case does not sever the sibling relationship between that child and his or her biological brothers or sisters. (In re Miguel A. (2007) 156 Cal.App.4th 389, 391.)
An older biological half sibling who had been adopted is held to be still a sibling for the purposes of considering the sibling exception to termination of parental rights and post adoption sibling contact. (In re Valerie A (2006) 139 Cal.App.4th 1519, 1525.)

See our page on The Sibling Bond for the Child’s definition of "Sibling"

SIBLING PLACEMENT

Placing Siblings Together, or Not

Whenever a child is taken into protective custody, the social worker "shall to the extent that is practical and appropriate, place the minor together with any siblings or half-siblings who are also detained" or include in their detention report the "continuing efforts to place the siblings together", or the reasons why the siblings are not placed together.
*Welfare & Institutions Code §306.5.

Each social study or evaluation prepared by a social worker or by a court appointed special advocate, which are required to be received in evidence prior to the court deciding disposition,
"shall include . . . a factual discussion" of:

• Whether the child has siblings under the court’s jurisdiction
• The nature of the relationship between the child and his or her siblings
• The appropriateness of developing or maintaining the sibling relationship
• If the siblings are not placed together, why not, and either what efforts being made to place the siblings together or why such efforts are not appropriate
• If the siblings are not placed together, the frequency and nature of their visits
• How the sibling’s relationships impact placement planning and the mandatory concurrent planning for legal permanence (See our section on Concurrent Planning, forthcoming)

A factual discussion of the nature of the sibling relationship, including:

• Whether the siblings were raised together in the same home
• Whether the siblings shared significant common experiences
• Whether the siblings have existing close and strong bonds
• Whether either sibling expresses a desire to visit or live with the other
• Whether ongoing contact is in each child’s best emotional interest

The social study or evaluation is not limited to these elements, but must include them.
*Welfare & Institutions Code §358.1

Whenever the court orders a child removed from parental custody, the court "shall" consider:

• Whether there are siblings under the court’s jurisdiction
• The nature of the sibling relationships
• The appropriateness of developing or maintaining the sibling relationships
• The impact of the sibling relationships on the child’s placement and on the planning for legal permanence

*Welfare & Institutions Code §361.2(i)

Welfare and Institutions Code section 16002, subdivision (b) provides: "The responsible local agency shall make a diligent effort in all out-of-home placements of dependent children, including those with relatives, to develop and maintain sibling relationships. . . .
As with relative placement, placement with siblings is a legislative goal that does not create a mandatory duty." (County of Los Angeles V Superior Court (Terrell R.) (2002) 102 Cal.App.4th 627, 642.)

The court must take sibling relationships into consideration when deciding placement with a parent who is not the custodial parent of some of the siblings. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1423.)

"In this case, neither the Department’s report nor the court’s findings and order complied with the statutory requirements. The Department’s report failed to address the closeness and strength of the bond between the Children; the appropriateness of maintaining the Children together; the detrimental effect of severing sibling ties; or the wishes of the older children, who are clearly mature enough to indicate their preferences. And, in neither its oral ruling nor its order did the court indicate it had given consideration to the factors listed in the statute." The order for termination of services was set aside, the §366.26 hearing vacated, and the case remanded for a new six-month hearing. (Abraham L. v Superior Court (2003) 112 Cal.App.4th 9, 15.)

"Ray correctly asserts the Legislature has recognized the importance of sibling relationships." However, "Ray has cited no authority that requires the Agency to develop a relationship between siblings that did not exist at the time a juvenile dependency petition was filed." (In re S.M. (2004) 118 Cal.App.4th 1108, 1123.)

SIBLING VISITATION

In order to maintain ties between the child and any siblings and to encourage or suspend sibling interaction, any order placing a child in foster care and ordering reunification services shall provide for visitation between the child and any siblings, unless the court finds by clear and convincing evidence that sibling interaction is detrimental to either child.
*Welfare & Institutions Code §362.1(a)(2).

Each supplemental report required to be filed with the court shall include whether the child has any siblings under the court’s jurisdiction, and if any siblings exist, and are not placed together, the frequency and nature of the visits between siblings.
*Welfare & Institutions Code §366.1(f)(1)(D)

When the court orders a child placed for adoption, nothing shall prevent the adoptive parents from considering or expressing willingness to facilitate postadoptive sibling contact. With the consent of the adoptive parent, the court may include in the final adoption order provisions to facilitate post adoptive sibling contact.

If, following the entry of such an order, the adoptive parents determine that sibling contact poses a threat to the health, safety or well-bring of the adopted child, they may terminate sibling contact provided that within ten days they submit written notification to the court of the reasons why the health, safety, or well-being of the adopted child would be threatened by continued sibling contact. Although upon finalization of the adoption, dependency jurisdiction is terminated, the court retains jurisdiction as to the post adoption contact agreement.

In no event shall the continuing validity of the adoption be contingent upon the postadoptive contact, nor shall the ability of the adoptive parent to change residence be impaired by a sibling contact order.
*Welfare & Institutions Code §366.29

"The Agency may not suspend sibling visitation unless the court finds such interaction would be detrimental to either sibling. . . .

When the juvenile court terminates parental rights and refers a child for adoption, it retains jurisdiction over that child until the adoption is effected. During that interim period, the juvenile court can make visitation orders as it sees fit, and sibling contact should remain the subject of its concern." (In re Cliffton B. (2000) 81 Cal.App.4th 415, 427.)

"The juvenile court is required to consider the existence and nature of sibling relationships in all placement, visitation and permanency hearings." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1005.)

SOCIAL WORKER IS TO INFORM SIBLINGS OF SIGNIFICANT LIFE EVENTS

When siblings who are dependents of the court are not placed together, their social worker(s) shall ensure that the "siblings are informed of significant life events that occur within their extended family", unless it has been determined such sharing is inappropriate. These significant life events shall include:

• The death of an immediate relative.
• The birth of a sibling.
• Significant changes regarding a court dependent sibling such as changes in placement, major medical or mental health diagnoses, treatments, or hospitalizations, arrests, or changes in the permanent plan, unless the child objects to the sharing of the information with his or her siblings.

*Welfare & Institutions Code §16501.1(f)(6)

PETITIONING THE COURT TO ASSERT A SIBLING RELATIONSHIP

"Any person, including a child who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related by blood, adoption, or affinity through a common legal or biological parent to a child who is, or is the subjection of a petition for adjudication" and may request:

• visitation with the dependent child
• placement with or near the dependent child
• consideration in determining or implementing a case plan or permanent plan
• any other order shown to be in the best interest of the dependent child

*Welfare and Institutions Code §388(b)

"If it appears that the best interests of the dependent child may be promoted by the proposed . . . recognition of a sibling relationship . . . the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given . . . ."
*Welfare and Institutions Code §388(d)

A non&45;adoptive sibling may also, by the filing of a §388(b) petition, obtain standing to participate in a §366.26 hearing and assert the sibling exception to termination of parental rights. To do so the sibling must demonstrate a bond sufficient for the court to consider its impact on the child being considered for adoption. (In re Hector A. (2005) 125 Cal.App.4th 783, 788.)

For Instructions on filing a Welfare & Institutions Code §388 Petition to Assert a Sibling Relationship go to "Request to Change Court Order" on this website.

THE SIBLING EXCEPTION TO TERMINATION OF PARENTAL RIGHTS

Even if the Court finds that a child is adoptable, if the court determines there would be substantial interference with a child’s sibling relationship, taking into consideration:

• The nature and extent of the relationship
• Whether that child was raised with the sibling in the same home
• Whether that child shared significant common experiences with the sibling
• Whether there are existing close and strong bonds
• Whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption

The court can conclude there is a "compelling reason" to find termination of parental rights would be detrimental and decline to terminate.
*Welfare & Institutions Code §366.26(c)(1)(B)(v).

Emphasis is on the Adoptive Child

In determining whether the sibling relationship exception applies, the court focuses on the impact that relationship has on the child being considered for adoption, not on that child’s sibling. The "ultimate question is whether adoption would be detrimental to the adoptive child, not someone else." (In re Celine R. (2003) 31 Cal.App.4th 45, 55.)

"The court is specifically directed to consider the best interests of the adoptive child, not the siblings, and must ultimately determine whether adoption would be detrimental to the adoptive child, not the siblings." (In re Daniel H. (2002) 99 Cal.App.4th 804, 814.)

". . . even if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.)

"This court has previously stated that the application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1015.)

The Exception Applies Only to Pre-Existing Sibling Relationships

"Section 366.26 . . . provides an exception to termination of parental rights where termination would cause a substantial interference with the sibling relationship. . . . As an initial matter, terminating parental rights, here, can in no way interfere with the sibling relationship; just as retaining parental rights would in no way preserve the sibling bond. The father’s parental rights as to Erik’s brother, Richard, were previously terminated and Richard has been adopted. . . . In enacting this exception, the legislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil. . . . These legislative goals would not be advanced here if the sibling relationship were preserved. Erik was placed in foster care as a newborn, immediately after his discharge from the hospital. He has no family history with his parents or other siblings." (In re Erik P. (2002) 104 Cal.App.4th 395, 403.)

"Although we recognize that visitation is an essential component of maintaining a bond between siblings and limiting visits might impact the parent’s ability to establish the . . . exception to termination of parental rights, there is no requirement to provide visitation to create a bond that does not exist." (In re S.M. (2004) 118 Cal.App.4th 1108, 1123.)

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