Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain Their Relationships Post-Adoption

Abstract

Over the last two decades, social science research has demonstrated the critical nature of sibling relationships, and, most recently, the importance of sibling relationships for foster children. Unfortunately, although our legal system has begun to respond to our growing awareness of these essential connections, e.g., many states, as well as Congress, have enacted statutes that protect sibling relationships to some degree, few have established laws to protect the relationship in the post-adoption context, leaving approximately 60% of children adopted from foster care every year, who are separated from their siblings, without the right to maintain their relationships with one another.

Research also shows that permanency for foster children, enshrined in the law and accomplished through adoption, is critical. Yet, closed adoption statutes, enacted at a time when the majority of adoptions were private and of infants, as well as the rights of parents to make decisions concerning the upbringing of their children, result in a situation where to achieve permanency, many children must lose their right to maintain their sibling connections, as courts are not permitted to order contact between siblings post-adoption. In addition, policymakers are reluctant to impose post-adoption obligations for fear that doing so will discourage persons families from seeking to become foster and adoptive families.

After reviewing statutes and case law from all fifty states, examining the social science research, and discussing open adoptions, this article proposes a template of reforms to our child welfare and adoption laws, and addresses some of the concerns, which may be raised by these contemplated changes. The proposed statutory provisions presume that the relationship between siblings in the foster care system will be maintained and permits courts to order post-adoption sibling contact, where it can be shown that there are existing connections between the children and it is in all of the children’s best interest.

I argue that the rights of the adoptive parents may be overcome here because there is something different about the parent-child relationship when the child is adopted out of a state-run foster care system, as compared to a private adoption, typically of a baby. Given this uniqueness, there is reason to question whether a strict reliance on parental rights is appropriate. In short, when a child is adopted from foster care, the State has been actively involved in the creation of the adopting parent–adopted child relationship, and, thus, has a parens patriae obligation to ensure that it is in line with the child’s best interest. This presence of the state, along with the children’s strong interest in maintaining their relationships with one another, diminishes the adopting parents’ expectations as to complete autonomy and alters the balancing, which always occurs between the rights of parents and the interests of the children and the state. We would never permit the State to sanction an adoptive relationship that did not agree to meet a child’s medical or developmental needs. Why then would we accept a situation where an adoptive parent was refusing to maintain a sibling connection, when such a relationship has been documented as being emotionally, and even psychologically, important to the child’s well-being?

By proposing statutory reforms to our adoption laws, this article attempts to further the dialogue concerning the rights of siblings in foster care to maintain their relationship when one or more of the children are adopted. While recently there has been some scholarly attention paid to the needs and rights of siblings in foster care and the sibling relationship more generally, little of it has been in the legal arena, and none of it has exclusively focused on the interests of siblings in the foster care system post-adoption. Moreover, no one has addressed the Fostering Connections to Success and Increasing Adoptions Act of 2008, and explored what these federal mandates might mean for the rights of siblings, both prior to and after the point of adoption.

Keywords: siblings, foster care, adoption, visitation