NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7553
SPONSOR: Buchwald TITLE OF BILL: An act to amend the family court act and the social
services law, in relation to contact by siblings in foster care, surren-
der, destitute child and permanency proceedings
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.
In enacting chapter 242 of the Laws of 2016, the Legislature took an
enormous step forward in ensuring the rights of siblings to maintain
their critically important relationships. In amending sections 1027-a,
1081 and 1089 of the Family Court Act, as well as section 384-b of the
Social Services Law, chapter 242 covered many siblings, who were sepa-
rated as a result of child protective, permanency and termination of
parental rights proceedings. However, the statute did not reach all
categories of siblings who, like the ones covered by chapter 242, had
been separated as a result of court proceedings. The numbers are signif-
icant, as it has been estimated that two-thirds of children in foster
care also have siblings in care,* many of whom are separated for a vari-
ety 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.** Many are covered by
chapter 242, but some, who are identically situated, are not. This meas-
ure would fill this gap.
First, the measure would amend section 1081 of the Family Court Act to
provide that the procedure for siblings to seek access to and/or commu-
nication with siblings in child protective proceedings also applies to
children who are the subjects of permanency and destitute minor
proceedings under articles 10-A and 10-C of the Family Court Act,
respectively. Section 1095 of the Act would be amended to specifically
incorporate sibling contact orders issued under section 1081 into desti-
tute minor orders.
Second, this measure would amend the permanency hearing sections of
Article 10-A to permit sibling access orders issued in voluntary place-
ment and destitute minor proceedings to be incorporated into permanency
orders, similar to the incorporation of such orders issued in child
protective proceedings. Article 10-A would further be amended to artic-
ulate the presumption in favor of keeping siblings together or, where
inappropriate, for the court order to include a directive for the agency
to arrange regular visitation or contact. This measure also delineates
a motion procedure for siblings to seek access and/or communication with
their siblings as part of a permanency hearing, similar to that included
in sections 1027-a and 1081 of the Family Court Act - an important
feature, especially in light of the statutory impetus and growing trend
for children to attend and participate in their permanency hearings. See
Family Court Act § 1090-a (L. 2016, c. 14). As in sections 1027-a and
1089, the term "siblings" would "include half-siblings and those who
would be deemed siblings or half-siblings but for the surrender, termi-
nation of parental rights or death of a parent."
Third, the measure would delineate a similar motion procedure for
sibling access and communication in the voluntary foster care placement
statute, section 358-a of the Social Services Law. Surely, voluntarily
placed children, who have a right at the subsequent permanency hearing
stage to seek contact with their siblings, should possess no less a
right at the initial placement stage. Section 358-a already includes the
presumption in favor of placement of siblings together and, where inap-
propriate, an obligation for regular contact or visitation to be
arranged. The measure would incorporate an important feature of chapter
242, i.e., that the placement or contact would need to be in the best
interests of both siblings. As in section 1089 of the Family Court Act,
the measure would define siblings to "include half-siblings and those
who would be deemed siblings or half-siblings but for the surrender,
termination of parental rights or death of a parent."
Finally, the measure would amend sections 383-c and 384, the statutes
regarding surrenders of parental rights, in a manner similar to the
amendment in chapter 242 of section 384-b of the Social Services Law.
Since the result of a parent's voluntary surrender of his or her rights
is the same permanent severance of parental ties as in an involuntary
termination of parental rights proceeding under section 384-b, the meas-
ure would add an identical provision to the surrender statutes, that is,
that acceptance or approval of a surrender "shall not be construed to
terminate any rights of the child to contact with his or her siblings."
Again, the definition of "siblings" includes "half-siblings and those
who would be deemed siblings or half-siblings but for the surrender,
termination of parental rights or death of a parent."
In enacting chapter 242, the Legislature reflected an increasing recog-
nition of the critical importance of maintaining and fostering sibling
relationships embodied in both Federal and New York State child welfare
laws and regulations - a recognition equally applicable to this measure.
Sections 1055(c) and 1089(d)(2)(viii)(F) of the Family Court Act provide
that placement and permanency hearing orders, respectively, "may include
encouraging and facilitating visitation with the child by the child's
siblings." Section 1027-a of the Act established the presumption that
placement of siblings together is in the children's best interests
unless "contrary to the child's health, safety or welfare." Regulations
of the State Office of Children and Family Services (OCFS) reiterated
this presumption (18 NYCRR § 431.10) and a 1992 Administrative Memo
issued by OCFS further provided that where siblings are placed in sepa-
rate homes, biweekly visitation should be arranged. Most recently, in
its Administrative Memorandum describing chapter 242, OCFS cited its
earlier Administrative Memoranda and White Paper regarding these
requirements. See "Placement, Visitation, and Contact for Siblings in
Foster Care" (16-OCFS-ADM-18)(Nov. 9, 2016) (citing "Foster Care,
Adoption: Requirements for Siblings Placement, Visitation and Communi-
cation" (92-ADM-24); "Definition of Siblings and Expansion of the Rela-
tive Notification Requirements" (15-OCFS-ADM-01) and "Keeping Siblings
Connected: A White Paper on Siblings in Foster Care and Adoptive Place-
ments in New York State" (07-OCFS-INF-04)).
On the Federal level, the Fostering Connections to Success and Increas-
ing Adoptions Act (Public Law 110-351), enacted in 2008, required child
welfare agencies to exercise "reasonable efforts" to place siblings
together when arranging temporary foster care, kinship guardianship or
adoptive placements - and, if not, to arrange for frequent sibling visi-
tation, unless contrary to the health, safety or well-being of the child
or children. The Preventing Sex Trafficking and Strengthening Families
Act (Public Law 113-183), enacted in 2014, required notification to
parents of siblings of children removed into foster care, as well as
notification to foster youth of their rights. As in chapter 242, it
defined sibling to include those who "would have been considered a
sibling of the child under state law but for a termination or other
disruption of parental rights, such as the death of a parent." See 42
U.S.C. § 675(12). Significantly, in order to implement these provisions,
in 2015, OCFS included the following in its Bill of Rights for Children
and Youth in Foster Care, which is applicable to all children in foster
care:
As a child or youth in foster care in the State of New York, I have the
right:
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.
The instant measure, like chapter 242, is consistent with case law
regarding sibling contact, recognizing the constitutional dimensions of
parents' rights in the upbringing of their children. See e.g., Troxel v.
Granville, 530 U.S. 57 (2000); 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 Court of Appeals
recognized, 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 J. v.
Cortland County Dept. of Social Services, 199 A.D.2d 765 (3rd Dept.
1993). The measure's amendment to the voluntary surrender provisions,
like the amendment in chapter 242 to the termination of parental rights
statute, removes any doubt regarding the standing of children to seek
contact with siblings under the procedural vehicle of section 71 of the
Domestic Relations Law, notwithstanding severance of their ties to their
parents. Further, the measure's incorporation of the requirement in
chapter 242 that any order for contact serve the best interests of both
siblings seeking contact and the sibling to be contacted is consistent
with earlier cases adjudicating sibling applications. See e.g., Keenan
R. v. Julie L., 72 A.D.3d 542, (1' Dept. 2010) (visitation denied where
causing anxiety to the siblings, who had no meaningful relationship with
applicant).
For youth already suffering the trauma of separation from their homes,
regardless of whether the separation stems from a destitute minor
proceeding, voluntary placement by parents, child abuse or neglect, a
permanency hearing or termination of parental rights, it cannot be over-
emphasized that maintenance of their relationships with their siblings
may be a vital lifeline. These relationships may provide a protective
shield against further trauma, an aid in coping with loss and grief, and
are essential to children's development of normal attachments and self-
esteem - significantly, often "the most stable and consistent relation-
ship available." See R. Mandelbaum, Delicate Balances: Assessing the
Needs and Rights of Siblings in Foster Care to Maintain their Relation-
ships 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-a-
doption Sibling Visitation," 43 Cap. ULaw Rev. 307, 319-326 (2015). The
Children's Law Center's memorandum in support of chapter 242, dated June
3, 2016, as well as the "Beyond Permanency" Symposium that it sponsored
at New York Law School on October 23, 2015 and 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 complete the important step taken by the
Legislature in enacting chapter 242 and will provide substantial devel-
opmental benefits for the numerous sibling groups in all categories of
care in the State's child welfare system.
This measure, which would have no fiscal impact upon the State, shall
take effect on the ninetieth day after it shall have become a law.
LEGISLATIVE HISTORY:
None. New proposal.
* "Sibling Issues in Foster care and Adoption" (Child Welfare Informa-
tion Gateway, www.childwelfare.gov/pubPDFs/siblingissues.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))
** R. Mandelbaum, Delicate Balances: Assessing the Needs and Rights of
Siblings in Foster Care to Maintain their Relationships Post-Adoption,"
41 1V.Mex.Law Rev. 1, 6 (Spring, 2011)
