Sibling visitation for children in Md.’s foster care system

How and whether siblings placed separately in foster care will be given opportunities to visit one another regularly and maintain familial connections are questions sometimes overlooked by the local Department of Social Services (“Department”) in its exercise of its primary function — to ensure the health and safety of children in its care.

Four frightened and bewildered children were brought to the attention of the local Department after their mother was emergently hospitalized because of an apparent stroke.

Donte, the oldest child, age 9, called 911 after several attempts to “wake up” his mother proved unsuccessful.

Donte and his younger siblings, developmentally delayed Imani, 7, and 3-year-old twins Mya and Kenia, were soon huddled together in a police cruiser and driven to the local Department’s office.

Unable to identify one kinship or foster placement for all four children, the assigned caseworker placed the four children in three separate homes.

Donte began to struggle in school and in his placement. He seemed unable to focus and began having behavioral problems. Donte expressed worries about his mother and missing his sisters, whom he had not seen for several weeks.

Applicable Maryland regulations require that “a local department … shall …[i]mplement a visitation plan which offers siblings visitation with the child living in an out-of-home placement unless the court has ordered no visitation.”  COMAR 07.02.11.05(C)(7).

Maryland’s Family Law Article states that, “Any siblings who are separated due to a foster care or adoptive placement may petition a court, including a juvenile court with jurisdiction over one or more of the siblings, for reasonable visitation rights.”  Fam. Law §5-525.2(c)(1).

This statute goes on to provide that a court “(i) may hold a hearing to determine whether visitation is in the best interest of the children; (ii) shall weigh the relative interests of each child and base its decision on the best interests of the children promoting the greatest welfare and least harm to the children; and (iii) may issue an appropriate order or decree.”  Id.

Clearly, the applicable regulatory and statutory language supports the conclusion that the Department is to ensure that siblings in out of home placement are to be given opportunities to visit one another.

The Baltimore City Department of Social Services (“BCDSS”), and the Maryland Department of Human Services are subject to the additional scrutiny of a federal court modified consent decree (“MCD”) entered in the case of L.J. v. Massinga, which establishes specific substantive compliance requirements for the protection of children and families.

For sibling visitation for children in out-of-home placement, the MCD indicates that “… the BCDSS shall facilitate frequent and meaningful contact between the child and each of the child’s siblings in out-of-home placement; and that ‘for each child in out-of-home placement, the BCDSS shall make reasonable efforts to facilitate meaningful contact between the child and each of the child’s siblings not in out-of-home placement.’”

The MCD states that such contact is to be “where possible, overnight and weekend visits but no less frequent than one visit every two (2) weeks that provides an opportunity for age-appropriate activities for the siblings.”

That familial connections are essential to a child’s well-being and, therefore, in the child’s best interest is clearly recognized.

Maryland’s courts have also recognized the importance of sibling visitation.

The Court of Special Appeals has said: “Given the importance the law attaches to the sibling relationship,…..the evidence regarding the potential for harm to [ ], a Child In Need of Assistance (CINA), if she is cut off from visitation with her siblings could be sufficient to overcome the presumption favoring [the parent’s] determination that visitation should not occur. . . . .we recognize that the sibling relationship has been widely recognized as an important one, which will be given significant consideration and protection by courts in cases involving the family.”  In re Tamara R., 136 Md. App. 236, 254, 255 (2000).

To be clear, Maryland has not recognized a sibling’s constitutional right to visitation.

The Court of Appeals denied visitation to a CINA seeking visitation with her half siblings over the objection of their biological parents, holding that as a third party, the CINA was required and failed to show exceptional circumstances demonstrating that lack of visitation would have a deleterious effect on the half siblings.  See. In re Victoria C., 437 Md. 567 (2014).

Nevertheless, in the context of a local Department’s responsibility to facilitate meaningful contact among siblings placed separately in out-of-home placements, it is evident that maintaining sibling bonds is clearly an important element in ensuring each child’s well-being.

All parties in the child welfare system share a duty to ensure these vital connections are vigorously maintained, for the sake of each child.

Cheryl J. Smith is a staff attorney at Maryland Legal Aid.

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