CHILD IN FOSTER CARE SEEKS SUPREME COURT
DETERMINATION THAT SIBLINGS HAVE A RIGHT
TO FAMILY INTEGRITY WHEN THEIR PARENTS
HAVE LOST CUSTODY.
R. Susan Dillard, Esq.
Committee for Public Counsel Services
470 Atlantic Ave., Suite 700
Boston, MA 02210
In a case that has sparked national discussion of an issue that affects thousands of children in foster care, the lawyers for a four-year-old child known as Hugo filed a petition for a writ of certiorari in the United States Supreme Court in December 1998. The lawyers are asking the Supreme Court to review the Massachusetts courts’ decision that Hugo and Gloria, two siblings in foster care, be placed in separate home and adopted by different families. The case is Hugo P. v. George P., Mary D. and Linda Carlisle in her capacity as Commissioner of the Massachusetts Department of Social Services, Docket No. 98-7565. The Supreme Court has not yet ruled on whether it will accept the case.
Hugo and his older sister, a six-year-old known as Gloria, have lived together with a Massachusetts Department of Social Services (DSS) foster mother, known as Enid, since August 1996. Gloria has lived with Enid since birth, and Enid adopted Gloria in October 1996. Hugo has lived with Enid and Gloria for more than two years, after initially being placed in another foster home. The children never lived with their biological mother or father who both have problems that prevent them from being able to assume parenting responsibilities. The rights of both parents have been terminated by the court.
In late 1997, DSS and Hugo’s lawyers advocated that Enid be allowed adopt Hugo as she wanted to be the adoptive mother of both children and this plan would allow the siblings to stay together permanently. Hugo’s biological mother and father proposed an alternate plan -- that Hugo be moved to New Jersey and adopted by a paternal aunt who first came forward to express an interest in Hugo in July 1996. Enid made clear that if she were allowed to adopt, the adoption would be open: the aunt could see her nephew (and niece) whenever she came to Boston and the children could go to New Jersey for visits when they were older. The court ruled that Hugo should be moved to New Jersey and adopted by the aunt.
Hugo’s lawyers argue on his behalf that not only does a biological link connect the brother and sister, but they have a positive, loving relationship and are securely attached both to Enid (Gloria’s adoptive mother and Hugo’s foster mother) and to each other. In this case, there is no evidence that there is anything negative or harmful to either child about maintaining his or her sibling relationship in this family. Even the trial judge found that Hugo’s attachment to Gloria is “a firm, positive foundation for him.” At issue before the US Supreme Court is whether the judge, in deciding that Hugo should be separated from his sister and adopted by the paternal aunt (a decision upheld by the Massachusetts Supreme Judicial Court) sufficiently took Hugo’s rights to family integrity into account. No court that has reviewed the case has addressed the constitutional question that lawyers for Hugo raise about his right to continue to live in a family with Gloria.
Hugo’s lawyers contend that in making his “best interest” determination, the trial judge gave insufficient weight to his right to maintain his existing relationship with Gloria and gave too much weight to other factors. The basis of the decision was that the judge believed that the aunt, who works as an administrative assistant in the New York police department and raised a child with developmental delays, would be a better parent for Hugo who also has developmental problems. The judge acknowledged that Hugo called Enid “mommy” and that Enid was caring and loving, diligently accompanying Hugo to developmental specialists, pediatricians and other specialists who work with him. The judge, however, did refer to Enid as “a professional foster parent.” The judge found that although Hugo would undoubtedly be harmed by the move to New Jersey, and that he would regress, he would likely recover and would be better off in the long run in the care of his aunt. He ordered that the paternal aunt permit Hugo to visit his sister and foster mother, although he did not specify how frequently visits should occur or who would be financially responsible for the costs of the interstate visits.
The US Supreme Court has not had occasion to address the issue of whether the fundamental liberty interest in family integrity that the Supreme Court has recognized exist between parent and child extends to the sibling relationship. Hugo’s lawyers rely on a line of cases that includes Stanley v. Illinois and Santosky v. Kramer in asking that the court recognize that he has a fundamental right to family integrity. His lawyers contend that the court should not have separated him from the last vestige of his nuclear family without a showing by a heightened standard of proof ‹ clear and convincing evidence -- that separation was in his best interests. The lower federal courts and state courts have not agreed as to whether siblings who are together in foster care and who are not going to return to their parents have a fundamental right to continue their family relationship with one another. A Supreme Court ruling could clarify the constitutional standard that should be applied.
State and private adoption professionals have had mixed reactions to Hugo’s assertion that children who live together in foster care have a right to continue their sibling relationship when adoption plans are made for them. On one hand, some say agencies already give deference to the sibling bond when making adoption plans. On the other hand, some fear that recognition of a constitutional right – that requires a high level of evidence be brought forward to justify the separation of siblings -- may tie their hands in finding adoptive families. Furthermore, there are fears that the shortage of adoptive families who are willing to adopt siblings may delay implementation of permanent plans for children.
One aspect of the important public policy question raised by the Hugo case is the misperception that constitutional rights are absolute and inviolable. If a constitutional right were to be accorded to siblings, every case would continue to be decided on its own facts. The constitutional right to a parent-child relationship, for instance, does not mean that children cannot ever be separated from their parents or that parental rights cannot ever be terminated. It simply means that in each case, the permanent severance of the parent-child relationship must be supported by clear and convincing evidence that the parents are unfit and that termination of parental rights is in the child’s best interest. Another aspect of the current debate -- the issue whether adoptive homes can be found for sibling groups -- is not raised directly by the Hugo case. To the contrary, in Hugo’s case, the foster mother wanted to adopt Hugo after already adopting his sister. The issue, however, underscores the need for additional efforts to recruit and retain foster and adoptive homes for siblings who cannot return to their biological families.
The deadline for the parties in this case to file memoranda in opposition to or in support of Hugo’s request that the Supreme Court accept his case is February 11, 1999. The National Association of Counsel for Children and other organizations will file a “friend of the court” brief in support of the petition for certorari. If the Supreme Court accepts the case, there will be a full briefing of the case, including additional ³friend of the court² briefs, oral argument, and a decision. The process may take another year. For that reason, Hugo’s attorneys have asked the Supreme Court to return Hugo to the home of Enid and Gloria while the case is pending in that Court.
POLICY AND PRACTICE
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