by Avron Bernstein and Circuit Judge Sue...
Transcript of by Avron Bernstein and Circuit Judge Sue...
Overview Legal framework for protecting sibling connections
Defining a sibling relationship
Recognition of the importance of siblings in Florida law
Advantages of keeping siblings together
What justifies separation of siblings under federal law or Florida law?
When siblings cannot live together; maintaining ties among separated siblings
FOSTERING CONNECTIONS The Fostering Connections to Success and
Increasing Adoptions Act of 2008 (Public Law 110-351) is the first federal law which specifically addresses the importance of keeping siblings together. Section 206 of the Act provides: REASONABLE EFFORTS
to place siblings removed from their home together unless contrary to their safety or well-being –and-
if separated, provide frequent visitation or other ongoing interaction unless contrary to their safety or well-being
Chapter 2014-224, Laws of FloridaSB 1666 in 2014 amended chapter 39
regarding sibling placement:
New subsection 39.402(8)(h)6 added
New subsection 39.402(9)(b) added
New subsection 39.701(2)(c)7 added
Fla. Stat. 39.402(8)(h)6 The order for placement of a child in shelter care must find
The DCF has made REASONABLE EFFORTS to keep siblings together if they are removed unless not in the best interestof each child
“It is preferred that siblings be kept together in a foster home, if available.”
Otherwise short-term placement in a group home with ability to accommodate sibling groups if available.
DCF shall report its efforts to place siblings together unless the Court finds not in the best interests
Fla. Stat. 39.402(9)(b) If siblings are removed and cannot be placed together:
The DCF shall provide a recommendation for frequent visitation or other ongoing interaction between the siblings unless contrary to a sibling’s safety or well-being. (See also Florida Rule of Juvenile Procedure 8.305(a)(9))
If visits are ordered but will not begin within 72 hours after shelter hearing, the DCF shall provide justification to the Court for the delay.
Fla. Stat. 39.701(2)(c)7 At the judicial review hearing, the court is required to
determine:
The frequency, kind, and duration of contacts among siblings who have been separated during placement, as well as any efforts undertaken to reunite separated siblings if doing so is in the best interest of the child.
See also Rule 8.415(f)(1) which contains a parallel provision.
Sec. 63.0427 - Agreements for continued communication in adoption case In an adoption arising from a Chapter 39 TPR, the adoption court may
order postadoption communication or contact with the adoptee’s siblings, considering: (a) Existence of prior orders for communication or contact (b) Recommendations of the DCF, the foster parents if other than the
adoptive parents, and the guardian ad litem. (c) Statements of the prospective adoptive parents. (d) Any other information deemed relevant and material by the court.
If ordered, it does not affect the validity of the adoption. If ordered, it does not affect the ability of the adoptive parents to
relocate including out of state. The adoptive parent may seek a court order terminating the contact
later on evidence of detriment to the adoptee.
Other Statutes in Florida
• Disposition statute not changed to address siblings
• Sibling contact and efforts to reunite siblings must be addressed at JR hearings for separated siblings. Fla. Stat. 39.701(2)(c)(7)
• Fla. Stat. 39.001(1)(k) “every possible effort” to keep siblings together and to maintain contact
• It is the intent of the Legislature in Sec. 63.022, whenever appropriate, to maintain sibling groups with respect to adoptions.
Administrative RegulationsConcerning Siblings Rule 65C-16.002, Fla. Admin. Code
In giving preference as required for the child’s current custodian in choosing an adoptive placement, a consideration is whether the custodian is willing to adopt the child’s siblings
Consideration must be given to the fact that a sibling relationship is the longest lasting relationship for a child and placing siblings together whenever possible preserves the family unit. Rule 65C-16.002(4)(a)
Administrative RegulationsConcerning Siblings Rule 65C-16.010, Fla. Admin. Code
Recognizes the difficulty of placing a large sibling group together
Addresses a situation when one child experiences difficulty in placement while the other child or children adjust well
In determining whether to separate the siblings, staff must as a team consider positives and negatives of keeping children together, thoroughly explore, and decide best interests. Contact must be made post-separation
Who is a sibling in Florida? A child who shares a birth parent or legal parent
with one or more other children; OR
A child who has lived together in a family with one or more other children whom he or she
identifies as siblings
Fla. Stat. 39.01(71)
No definition under Chapter 61 or 63.
Importance of Siblings Recognized by Florida Courts in DR cases Children should not be separated from each
other and distributed about in different homes
except for the most compelling cause. Arons
v. Arons, 94 So. 2d 849 (Fla. 1957); Matias v.
Matias, 948 So. 2d 1021 (Fla. 2d DCA 2007);
Bache v. Bashir, 482 So. 2d 546 (Fla. 4th
DCA
1986).
Splitting children among divorcing parents
will result in further destruction of what is
left, after divorce, of the family unit. Matias v.
Matias, 948 So. 2d 1021 (Fla. 2d DCA 2007)
Importance of Siblings Recognized by Florida Courts in DR cases The age of children and geographical
proximity of the parents to one another in
the same community may be a factor in
separating siblings in a dissolution of
marriage case. Epperson v. Epperson, 101
So. 2d 367 (Fla. 1958).
Importance of Siblings Recognized by Florida Courts in DR cases Separation of children may be justified
under particular circumstances.
Thompson v. Thompson, 402 So. 2d 122
(Fla. 5th
DCA 1981); Collier v. Collier, 384
So. 2d 697 (Fla. 4th
DCA 1980); Miller v.
Miller, 371 So. 2d 565 (Fla. 4th
DCA 1979);
Reinhart v. Reinhart, 291 So. 2d 103 (Fla.
1st
DCA 1974).
The preference of the children is a
consideration in this regard.
All other statutory factors must also be
considered.
Importance of Siblings Recognized by Florida Courts in DR cases Courts prefer to keep siblings together in
making custody determinations.
Exceptions may exist when children are
old enough to express a preference or
when it is otherwise in their best
interests. Griffith v. Griffith, 627 So. 2d 527
(Fla. 2nd
DCA 1993).
Importance of Siblings Recognized by Florida Courts in DR cases When family structures are “complex,” the
trial court does not have jurisdiction over
all the children and all the parents, there
can be no rigid rule requiring half-siblings
to remain together in a single residence.
Bonding among such siblings will still be
an “other fact” to be considered under
Sec. 61.13(3)(t). Munson v. Munson, 702
So. 2d 583 (Fla. 2d DCA 1997).
Importance of Siblings Recognized by Florida Courts in DR cases It may be appropriate to separately
consider the needs of a special needs
child in determining whether to separate
siblings. Peacock v. Peacock, 973 So. 2d
501 (Fla. 3d DCA 2008).
Florida law has long recognized a
preference for keeping siblings together
whenever possible and whenever it is in
the best interests of the siblings. Glover v.
Glover, 834 So. 2d 927, 929 (Fla. 5th DCA
2003).
Importance of SiblingsFlorida recognizes the importance of sibling relationships, e.g., as contained in Florida’s Administrative Code:
When considering adoption placement of a sibling group, consideration must include the fact that a sibling relationship is the longest lasting relationship for a child –and-placing siblings together, whenever possible, preserves the family unit.
65 FL ADC 65C-16.002
When Siblings Are Separated (for Adoption) 65 FL ADC 65C-16.002 Consider the emotional ties existing between and among the siblings.
Consider the degree of harm which each child is likely to experience
as a result of separation.
Consider the positives and negatives of keeping the children
together.
Short term and long range effects of separation on the children must
be addressed in making the decision.
There must be a plan for future contact between children if
separation is approved. The plan must be one to which each adoptive
parent and caretaker can commit.
If after placement as a sibling group, one child does not adjust to the
family, a decision must be made regarding what is best for all of the
children. Any decision to pursue separate placements must also
include a plan for future contact.
If DCF takes into custody a child who is a sibling to previously
adopted children, the DCF must advise the adoptive parents of this
occurrence. If this child becomes available for adoption, the adoptive
parents of the previously placed sibling must be given an opportunity
to apply to adopt this child.
Sibling RelationshipsSpecial
issues for
siblings from
homes where
there has
been
exposure to
violence,
chronic
neglect, or
other abuse.
Other statutes consider sibling relationships as “best interests” Sec. 63.082(6)(e) – in determining best
interests for adoption of a child in DCF
custody based on parents’ consent, the court
is required to consider inter alia “the
importance of maintaining sibling
relationships, if possible.”
Sec. 39.810(5) – in determining manifest best
interests for TPR under Chapter 39, the court
must consider “the love, affection, and other
emotional ties between the child … and the
child’s siblings….”
Standing and Enforcement Issues Siblings do not have standing to object in
adoption of their sibling. Sec. 63.022
requirement to “maintain sibling groups”
does not confer standing. S.J. ex rel. M.W.
v. W.L., 755 So.2d 753 (Fla. 4th
DCA 2000).
Standing and Enforcement Issues Child’s siblings had no standing, no
constitutionally protected rights, and no
enforceable rights under Fostering
Connections Act to appeal adoption and
resulting separation from siblings. In re
the Interest of Meridian H., 798 NW2d 96
(Neb. 2011).
Standing and Enforcement Issues Parents had no enforceable rights under
the Fostering Connections Act to file a
separate civil action for violations
whereby children were removed from
Hindi parents, placed in different foster
homes, given beef, and taken to Christian
worship services. B.K. and S.K. v. New
Hampshire Dept. of Health and Human
Services, 814 F. Supp. 2d 59 (U.S.D.C. New
Hampshire 2011).
Keeping Siblings Together In small sibling groups being removed at the
same time, they will generally be placed
together unless
They have different fathers and one or more will
be placed immediately with father(s)
Legal issues prohibit placement together (e.g.,
one child in a juvenile detention status)
A sibling is abusive
No placement together is available
Seek kinship placements first because (1) the law requires it and (2) they are generally more open to taking a group
Practical AdvantagesCase worker, GAL, and service
providers are able to attend to all
of the children in one location
Visits with parents may be
simplified
No need to facilitate sibling
visitations
Strategies to Preserve Ties Between Separated Siblings Place siblings with relatives who are relatives to one
another or who have a relationship to one another
Place siblings in geographical proximity to one another
In addition to arranging for regular visits as required:
Arrange for contact by mail, email, social media, etc.
Arrange for joint outings or joint participation in summer programs
Arrange for joint respite care
*The suggestions on the last three slides come from The Child Welfare Information Gateway and are used with permission.
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FOSTERING SIBLING CONNECTIONS
By Avron Bernstein and Judge Sue Robbins
Although much emphasis over the years has been placed on visitation between parents
and their children, visitation and contact between siblings has always been a significant
component of dependency cases. Florida caselaw has already acknowledged the importance of
sibling contact. Furthermore, recent changes in the law have brought renewed focus to sibling
placement and sibling visitation. Both federal law and Florida statutes have been amended to
include provisions regarding sibling contact. Accordingly, the Florida Rules of Juvenile Procedure
also have been changed to reflect the emphasis on sibling placement and visitation.
The following are examples of a few of the issues which arise for siblings removed from
their parents in cases filed under Chapter 39.i In case number one, M.H., now three years of age,
was removed from her mother after the death of the man presumed to be the father of M.H. She
was placed in foster care, and eventually the mother surrendered M.H. for adoption. The
parents’ rights to two older children were terminated before M.H. was born, and those children
were adopted. The adoptive parents have petitioned to adopt M.H., but the foster parents, with
whom she has lived all her life, have also petitioned to adopt. The mother and maternal
grandparents want to see M.H. placed with the adoptive parents so that she may be raised with
her siblings. The guardian ad litem and expert witnesses believe that M.H. should remain where
she is and be adopted by the foster parents. The court approved the adoption by the foster
parents even though it meant that M.H. was permanently separated from her siblings.ii In case
number two, B.G.J. was one year old and placed with foster parents when her parents’ rights
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were terminated. The foster parents sought to adopt. In the meantime B.G.J.’s twin brothers
were adopted in a separate home which originally had declined to adopt B.G.J. Although B.G.J.
was very well bonded to her foster parents and the trial court approved that home to adopt her,
the appellate court reversed this decision based on the department’s decision to place B.G.J. with
her siblings for adoption.iii Similarly, M.Z. was removed from her foster care placement and
placed with the paternal grandparent of her half-siblings in order to place her with her siblings.
The foster parents were desirous of adoption. However, it does not appear that parental rights
had been terminated. Furthermore, there was no indication that M.Z. previously had any sort of
relationship with the grandparents of the half-siblings or that the placement in that home would
be permanent.iv Procedurally, the order placing M.Z. had been rendered seven months prior to
the appeal and so the appellate court had no jurisdiction to review that order.v
Florida has long respected sibling relationships in determining custody, parenting plan,
and time sharing issues, and many domestic relations cases over the years have directed that
children should not be separated from each other and distributed about in different homes
except for the most compelling cause. The Florida Supreme Court held in Arons v. Arons,vi “while
brothers and sisters may not have a legal right to remain together, to share each other’s lives,
and to grow up together, certainly they have a natural right to do so. Justice requires that society
exercise its moral duty to ensure that children in a family enjoy this right until such time as
absolute necessity and the welfare of the children, itself, requires their separation.” Because it
found no such need for separation of the children in this dissolution of marriage case, it reversed
the trial court’s judgment. By contrast, in Matias v. Matias,vii the judgment separating the siblings
was approved, where the children had been living separately for the past four years and a plan
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was in place that enabled the children to see each other every weekend. To similar effect is
Griffith v. Griffith, which clarifies that courts prefer to keep siblings together in making custody
determinations, but that exceptions may exist when children are old enough to express a
preference or when it is otherwise in their best interests.viii The appellate court reversed a
supplemental final judgment placing one sibling with each parent, when one parent lived in
Pakistan and the other lived in Florida.ix Splitting children among divorcing parents results in
further destruction of what is left, after dissolution of marriage, of the family unit.x In Glover v.
Glover, the court acknowledged the preference in Florida law for keeping siblings together and
noted that it was in the younger sibling’s best interest to be placed with the mother, along with
his older sister.xi
Clearly, the age of children, geographical proximity of the parents to one another in the
same community, and all other statutory factors must be made in determining a parenting plan
and time sharing arrangement under Chapter 61. The older cases, some allowing and some
disallowing separation of siblings, may be informative.xii In addition, when family structures are
particularly complex, when the trial court does not have jurisdiction over all the children and all
the parents, there can be no rigid rule requiring half-siblings to remain together in a single
residence. Bonding among such siblings will still be an “other fact” to be considered under Sec.
61.13(3)(t).xiii It may be appropriate to separately consider the needs of a special needs child in
determining whether to separate siblings.xiv In Peacock v. Peacock, although one judge would
have remanded the case for additional findings of fact and questioned whether the trial court’s
decision was in the best interests of the two sisters,xv the majority affirmed the award of custody
of the children to the former husband.xvi However, the majority noted that it was unable to agree
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with the dissenting judge because the parties had not requested that the two daughters be
placed separately with the mother.xvii
The Fostering Connections to Success and Increasing Adoptions Act of 2008 (hereafter the
“Fostering Connections Act”)xviii is the first federal law which specifically addresses the
importance of keeping siblings together. The Act requires the state agency to make and
document reasonable efforts to place siblings removed from their home together unless contrary
to their safety or well-being, and, if separated, to provide frequent visitation or other ongoing
interaction unless contrary to their safety or well-being.xix Florida has passed similar legislation
for cases in which children are removed from their home under Chapter 39.
Section 39.001(1)(k) announces the statutory intent “to make every possible effort, if two
or more children who are in the care or under the supervision of the department are siblings, to
place the siblings in the same home; and in the event of permanent placement of the siblings, to
place them in the same adoptive home or, if the siblings are separated while under the care or
supervision of the department or in a permanent placement, to keep them in contact with each
other.”xx According to current Florida statutory requirements, as amended in 2014, the judge at
a shelter hearing must make written findings that the department has made reasonable efforts
to keep siblings together if they are removed and placed in out-of-home care unless such
placement is not in the best interest of each child. The statute repeats the legislative preference
that siblings should be kept together in a foster home, if available. Other reasonable efforts shall
include short-term placement in a group home with the ability to accommodate sibling groups if
such a placement is available. The statute requires the department to report to the court its
efforts to place siblings together unless the court finds that such placement is not in the best
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interest of a child or his or her sibling.xxi Similarly, the Florida Rules of Juvenile Procedure contain
a parallel provision. Rule 8.305(a)(8) requires that the shelter petition specify the department’s
reasonable efforts to keep siblings together (if not currently placed together) after their removal
from the home, why a foster home is not available to place the siblings, or why it is not in the
best interest for all siblings to be placed together in out-of-home care. Likewise, Rule 8.305(c)(3)
requires that the court’s shelter order contain written findings on these same criteria. Rule
8.305(c)(4) requires findings specifying visitation/interaction between siblings or, if that is not
recommended, why visitation/interaction would be contrary to the children’s safety or well-
being. It is noted that the Florida statutes require a showing that siblings are separated because
placement together is not in the best interest of one or more of them, while the federal statute
disallows separation unless placement together is contrary to one or more of the children’s safety
or well-being. Cases have not been decided on this point. However, it appears that the Florida
Statute allows much broader grounds to separate siblings than is contemplated under the federal
statute. A best interest analysis includes positive as well as negative considerations.
Other Florida Statutes, not only those to which the Fostering Connections Act apply or
those involving removal of children from their home under Chapter 39, reflect the importance of
sibling relationships. For example, Sec. 63.022 recites the intent of the Legislature whenever
appropriate, to maintain sibling groups with respect to adoptions. Section 63.082(6)(e) provides
that, in determining best interests for adoption of a child in department custody based on
parents’ consent, the court is required to consider inter alia “the importance of maintaining
sibling relationships, if possible.”
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Also under Chapter 63, in an adoption arising from a Chapter 39 TPR, the adoption court
may order postadoption communication or contact with the adoptee’s siblings.xxii In making such
a ruling, the adoption court must consider:
(a) The existence of prior orders for communication or contact.
(b) The recommendations of the department, the foster parents if other than the adoptive parents, and the guardian ad litem.
(c) The statements of the prospective adoptive parents.
(d) Any other information deemed relevant and material by the court.
If such contact is ordered, a subsequent breach of the order expressly does not affect the
validity of the adoption. Furthermore, if such contact is ordered, it does not affect the ability of
the adoptive parents to relocate including out of state. The adoptive parent may seek a court
order terminating the contact later on evidence of detriment to the adoptee.xxiii
Although not expressly defined under Chapters 61 or 63, the term “sibling” was defined
under Chapter 39 in 2014 to give it a very broad definition similar to that in the Fostering
Connections Act. A “sibling” is a child who “shares a birth parent or legal parent” with one or
more other children, and is also a child who has “lived together in a family” with one or more
other children whom he or she “identifies as a family.” This definition is broad enough to include
a step-sibling, adopted sibling, foster sibling, or another child who lived in the home and formed
a sibling-type relationship. This definition has not been added to the Florida Administrative Code
to date.
Additional statutory amendments in 2014 require that sibling contact and efforts to
reunite siblings must be addressed at judicial review hearings for separated siblings.xxiv
Specifically, the court (or citizen review panel) must seek to determine “the frequency, kind, and
7
duration of contacts among siblings who have been separated during placement, as well as any
efforts undertaken to reunite separated siblings if doing so is in the best interest of the child.”xxv
The Florida Rules of Juvenile Procedure were amended to include a corresponding identical
requirement at the judicial review hearing.xxvi Therefore, the court has an affirmative obligation
to inquire into sibling contact at each judicial review hearing. On the other hand, the disposition
statute was not changed to address sibling issues. Section 39.810(5) also directs, in determining
manifest best interests for TPR under Chapter 39, the court must consider “the love, affection,
and other emotional ties between the child … and the child’s siblings….” With the very broad new
definition of sibling under Chapter 39, this could effect a significant change in the manifest best
interest analysis. For example, the relationship between the child and the children he regards as
his siblings in his out-of-home placement would now be a proper statutory consideration.
Siblings do not have standing to object in an adoption of their sibling. The requirement
contained in Section 63.022 to “maintain sibling groups” does not confer standing on the
adoptee’s sibling.xxvii Similarly a child’s siblings were found to have no standing, no
constitutionally protected rights, and no enforceable rights under Fostering Connections Act to
appeal an adoption and resulting separation of the siblings.xxviii
In another case in which procedural and substantive rights were analyzed, Hindi parents
were found to have no enforceable rights under the Fostering Connections Act to file a separate
civil action for violations whereby their children were removed, placed in different foster homes,
given beef contrary to the family’s religious beliefs, and taken to Christian worship services.xxix
Although many of the Florida statutory provisions concerning siblings are very new, and
there are surprisingly few cases under the Fostering Connections Act, it is clear that placement
8
of siblings together and maintaining contact among siblings is a more important consideration
than ever. In ensuring compliance with the law, the following observations may be useful. When
a sibling group is small and all of the children are removed at the same time, they will generally
be placed together. Exceptions may be when the children have different fathers and one or more
will be placed immediately with a father, when there are legal issues from another case which
prohibit placement together (e.g., one child has a juvenile detention status), or when one sibling
has a history of being abusive to another.
In an effort to keep the children together, it will be necessary to seek kinship placements
first because (1) the law requires it and (2) they may generally be more open to taking a sibling
group. Such a placement, even if it requires additional services or a safety plan may be preferable
if it keeps the children together. The case worker, GAL, and service providers will be able to
attend to all of the children in one location, arranging visits with parents will be simplified, and
there will be no need to facilitate sibling visitations.
If siblings must be separated, there are still strategies that may help maintain the
relationships between them and comply with the requirements on the part of the department to
facilitate contact. Placing siblings with relatives who are relatives to one another or who have a
relationship to one another may encourage more frequent visitation and contact, while also
potentially maintaining important family relationships for the children. Placing siblings in
geographical proximity to one another is another alternative if available.
In addition to arranging for regular visits as required under the statute, the family care
manager should attempt to arrange for contact between the siblings by mail, email, social media,
etc. The family care manager may also (depending on the circumstances) arrange for joint outings
9
or joint participation in summer programs such as camps and activities, or arrange for joint
respite care.xxx
As case law develops further, we can expect to see more of the kinds of cases discussed
in at the outset, but also more guidance in how best to address the needs of children.
i Except as otherwise noted, all statutory references are to Florida Statutes (2015). ii In the Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011). iii DCF v. M.W., 819 So. 2d 984 (Fla. 4th DCA 2002). iv GALP v. DCF, 936 So. 2d 1183 (Fla. 5th DCA 2006). v Id. at 1184. The court also cited § 39.001(1)(k), Florida Statutes in support of finding no abuse of discretion by the trial court. vi 94 So. 2d 849, 853 (Fla. 1957). vii 948 So. 2d 1021 (Fla. 2d DCA 2007). viii Griffith v. Griffith, 627 So. 2d 527 (Fla. 2nd DCA 1993). ix Bache v. Bashir, 482 So. 2d 546 (Fla. 4th DCA 1986). x Arons, 94 So. 2d at 853. xi Glover v. Glover, 834 So. 2d 927, 929 (Fla. 5th DCA 2003)(The younger sibling was developmentally disabled and his older sister had to assume a caretaker role to help her brother with basic needs). xii See, for example, Epperson v. Epperson, 101 So. 2d 367 (Fla. 1958); Thompson v. Thompson, 402 So. 2d 122 (Fla. 5th DCA 1981); Collier v. Collier, 384 So. 2d 697 (Fla. 4th DCA 1980); Miller v. Miller, 371 So. 2d 565 (Fla. 4th DCA 1979); Reinhart v. Reinhart, 291 So. 2d 103 (Fla. 1st DCA 1974). xiii Munson v. Munson, 702 So. 2d 583 (Fla. 2d DCA 1997). xiv Peacock v. Peacock, 973 So. 2d 501 (Fla. 3d DCA 2008). xv Id. at 503. xvi Id. at 502. xvii Id. xviii Pub. L. No. 110-351. xix 42 U.S.C. Sec. 671(a)(15) and (31). xx § 39.001(1)(k) as amended by Ch. 2014-224, Laws of Florida. xxi § 39.402(8)(h)6 as amended by Ch. 2014-224, Laws of Florida. xxii § 63.0427. xxiii Id. xxiv § 39.701(2)(c)(7), Fla. Stat. xxv Id. xxvi Florida Rule of Juvenile Procedure 8.415(f). xxvii S.J. ex rel. M.W. v. W.L., 755 So.2d 753 (Fla. 4th DCA 2000). xxviii In re the Interest of Meridian H., 798 N.W. 2d 96 (Neb. 2011). xxix B.K. and S.K. v. New Hampshire Dept. of Health and Human Services, 814 F. Supp. 2d 59 (U.S.D.C. New Hampshire 2011). xxx These suggestions come from the Child Welfare Information Gateway and are used with permission.