The Broad View

George Sheldon (left), secretary of Florida Department of Children and Families, and Jim DeBeaugrine (second from left), director of Agency for Persons with Disabilities, talk with Georgina Herbert and her adopted son Kaydrin at a press conference about how the two agencies have made it easier to adopt children who have disabilities at the Juvenile Justice Center. TIM CHAPMAN / MIAMI HERALD STAFF

This blog began as a means to advocate for children and their gay adoptive parents. Thanks to the Third District Appellate Court ruling back on September 22nd of this year, the ban on gay adoption in Florida will no longer be enforced. But given the title of the blog, the issues that face children in our state are far wider than the issue of gay adoption. Thus, it is my intent to have this blog find a sustained life in looking at the broader issues of child welfare in Florida.

Looking at stories around Florida this week, on the adoption front we have good news about the  financial support offered to families adopting disabled children. Typically, when a child who is seriously disabled enters foster care, that child will age out of the system, even if the child has adults who would wish otherwise. The fiscal realities of being able to care for a seriously disabled foster child that you love and would like to offer permanency to have been daunting. An August survey of children waiting for adoptive homes revealed 638 children with developmental disabilities, including autism, cerebral palsy and mental retardation, among the many disabilities suffered by some of the children in foster care. More than 220 of those children are waiting to qualify for APD services.

"I've had clients where I told them, 'It doesn't make sense for you to adopt, because all of the assistance you're getting from the government, it's not going to be there for you once you adopt -- and you can't afford what this child needs,' '' said Alan Mishael, a Miami attorney who represents S.M. "I don't have to say that anymore.''

~ From the Miami Herald       

A new program, forged between the Department of Children and Families and the Agency for Persons with Disabilities sets aside funds for the additional services that will continue to be needed by disabled children in foster care. Services which the standard adoption subsidy in our state would not even begin to cover.

Under the auspices of this program, Georgina Herbert recently adopted Kaydrin Herbert, shown above. Kaydrin is a victim of Shaken Baby Syndrome, a dreadful condition of brain damage created when a newborn is shaken violently, causing the soft, developing brain to slosh against the cranial walls. Kaydrin, rendered blind, mentally retarded and requiring around the clock care, had lived with Georgina Herbert, a nurse, since he was 2 months old.

Children who face serious disabilities may be cared for by loving foster parents who have few rights when it comes to making the actual decisions about the child's welfare and healthcare. I can tell you exactly how lucky Kaydrin is to have one person who will look after his care. I once had a Guardian ad Litem case with a young woman who was aging out of foster care. She was a shaken baby. She had been living with her medical foster home parent since the age of two weeks. She was mute, blind, and immobile. Her biological mother, whose rights had been terminated, was trying to re-ensconce herself into her daughter's life. The foster parent was faced with a terrible dilemma. As an APD provider of services to the child she could not become this child's permanent legal guardian after she aged out. She could not afford to adopt the child and lose the funding stream that paid for 24 hour care for the child. The biological parent clearly saw that funding stream, including the Social Security Income for the child, as a source of revenue. We got someone to become that child's permanent legal guardian, but she still has no legal parent nor is the woman who cares for her able to make important decisions unilaterally on her behalf. It was abundantly obvious to me, however, who that child's parent was. When the foster parent walked into the room calling her name, the girl rolled her head toward her and smiled. When her arm was stroked and her forehead kissed, everything about her relaxed and spoke of happiness. It was easy to tell the judge in the case that she should remain in this home permanently. 

Every child should have what she has.  Kaydrin no doubt does, and he has it with a legal judgment.

He's one lucky young man.

© Marzie @ itsaboutchildren.blogspot.com

Third District Court's 3-0 Ruling

Justices Cope, Shepherd and Salter's landmark ruling finding the ban on gay adoption in FL to be unconstitutional can be found here.

Notes from the Ruling:

"Under Florida law, homosexual persons are allowed to serve as foster

parents or guardians but are barred from being considered for adoptive parents.

All other persons are eligible to be considered case-by-case to be adoptive parents,

but not homosexual persons—even where, as here, the adoptive parent is a fit

parent and the adoption is in the best interest of the children.

The Department has argued that evidence produced by its experts and F.G.’s

experts supports a distinction wherein homosexual persons may serve as foster

parents or guardians, but not adoptive parents. Respectfully, the portions of the

record cited by the Department do not support the Department’s position. We

conclude that there is no rational basis for the statute."

Best of all is Judge Salter's concurring independent opinion, which follows the ruling he joined. From that opinion:

SALTER, J. (concurring).

I concur in affirming the judgment of adoption in this case. I write only to

emphasize certain parts of the record beyond those detailed by the trial court and

my respected colleagues. Those differences pertain to (1) the record regarding 

the other persons in the adoptive parent’s household and (2) the substantial  

changes in law and Department of Children and Families’ policy after the

Legislature enacted subsection 63.042(3) in 1977.

......

The categorical ban was enacted in haste and reaction in 1977.16 Those who

voted for it in the legislature did not prohibit the placement of children with

homosexual foster parents or permanent guardians—only the permanent step of

adoption was addressed. Because the Department has approved homosexuals to

serve as foster parents and permanent guardians,17 the Department now has

years of experience and observation to inform its position and its testimony in the  

trial court. 

Moreover, the placement of children in those households has allowed

bonds and relationships to form that are in the best interests of children—steps

toward permanency and stability in young lives that have already known too 

much pain and separation. In short, the categorical ban and the statutory 

polestar of “best interests of the children” after an extended and very successful 

foster placement (as here) are inimical.

......

Conclusion

In striking the categorical ban of section 63.042(3) on equal protection

grounds, we need not address the larger controversy regarding same-sex

marriage.²¹ The Department’s policies and stipulations (Appendix, paragraphs 6

and 8) have made it clear that placement with a married couple, or even an

applicant who might later marry, is not the rational basis proffered in support of 

the ban. The unconstitutionality of this particular categorical ban regarding 

adoption simply leaves the Department in the position described by its chief of 

child welfare services in her testimony below:

Q. Okay. So if the state law didn’t exist and the folks in the

department were implementing the child welfare policy,

would there be a reason to exclude gay people from adopting?

A. If the law didn’t exist, we would use the same criteria to

assess those families as any other, and the best interest of the

child would be the, would be the norm.

With these few differences in analysis, I concur in affirming the final

judgment of adoption.

_______________________________________________________________

²¹ In the recently-decided federal case in California, Perry v. Schwarzenegger,

2010 WL 3025614 (N.D. Cal. Aug. 4, 2010), many of the same equal protection

arguments, and two of the expert witnesses who testified in the adoption case here,

were cited in the court’s order.

Slater's ruling is both wonderful and accessible.

Let's hope DCF Secretary Sheldon gets his wish and the case is further appealed to the Supreme Court by the State. Let's get this law off the books!


© Marzie @ itsaboutchildren.blogspot.com

Gill Ruling

Martin Gill and his son

(Carl Juste for the Miami Herald)

VICTORY!

The Florida Third District Court of Appeals Rules the Florida Law Banning Gay Adoption is 

UNCONSTITUTIONAL!

© Bright Nepenthe, 2010

© Marzie @ itsaboutchildren.blogspot.com

Oral Arguments in Ethan's Case

Ethan, from Fight to Adopt's FB Page

Well, I've got four full pages of notes from this morning's oral arguments as the State tries to appeal Judge Sampedro-Iglesia's final judgment of adoption ruling. It's probably going to take while to clean up and fact check all that was said and heard. But I can give a brief summary and a sense of the atmosphere.

Unlike the chaotic feel of the 11th Circuit Dependency Court, the Third District Court of Appeals is a quiet, sober and serious place. Presiding over the Court were Chief Judge Juan Ramirez, Jr., and Judges Gerald B. Cope, Jr., and Leslie B. Rothenberg. In attendance at the hearing were not just Vanessa and Melanie Alenier but Florida State Senator Nan Rich, Bernard Perlmutter of the UM Children and Youth Law Clinic, legal representation from the Guardian ad Litem Program (Hillary Kambour, Robert Latham, Khamisi Grace), Dr. Oren Wunderman and Lourdes Pons, heads of Family Resource Center, a child welfare family case management agency in Miami, among many others.

Of the three points addressed in the arguments in the DCF's appeal, the one that is the easiest to digest for non-lawyers is the issue of the potentially discriminatory effect of a special law (which is what you can consider a law specifically banning gays from adopting) and I'm going to focus on that for right now.

The DCF's attorney argued the specifics of a special law- that it be applied uniformly, and is applied rationally to the subject which it dictates, are valid in this case and that the Department of Children and Families should have the right to articulate who gets to adopt and who doesn't. Chief Judge Ramirez asked the DCF attorney whether or not the statute that mandates a ban on gays adopting would be defensible if it banned blind people from adopting? Or deaf people? Or brown-eyed people?

While other arguments in this appeal dealt with violation of equal protection and bill of attainder punitive action without trial issues, the special law issue really was at the heart of most of today's arguments between the two sides.

At one point, Judge Rothenberg asked repeatedly, rephrasing the question several times, whether the ban on gay adoption is really discrimination against gay parents or whether it's a best interest issue. The Aleniers's attorney, Alan Mishael, pointed out that the State's own Case Manager in the case had recommended the adoption, but Judge Rothenberg said that what was in question was not whether the parents were good parents but whether the adoption by gay parents was in the best interest of the child. She also said that the law stemmed from days in which it was thought that gays abused children (implying sexual abuse) and that we have moved far past those times. Her implication was that the origin of the law exists because gays, though potentially fine people and good parents, might not the best adoptive parents for a child (what Mishael terms a conclusive presumption of being unfit to adopt). She mentioned twice that we have moved past the days when gays were considered bad people.

Have we moved past those days? Really? If we have moved, why hasn't the law moved with us, I wonder?

The US fought a Civil War over the freedom of blacks from slavery, drafted and passed the 14th Amendment to deal with discrimination issues and yet though that war ended in 1865 it took 99 years for the US to enact the Civil Rights Act of 1964, ending racial segregation and outlawing major forms of discrimination against blacks and women.

How long before we get rid of a bad, discriminatory law in my state, I wonder? 

Paraphrasing Mr. Mishael, discriminating against gays is no different from discrimination perpetrated on people because they are black or Jewish or Cuban. It's discriminating against people because they are not like us, and therefore are presumably bad people.

Discrimination is just plain wrong. And legislated discrimination is abhorrent.

I'll be back soon with more thorough notes on the arguments in this case. But until then, let me just say that it is absolutely surreal to think that three people sitting on a bench get to determine whether Ethan gets to be adopted by the only parents he's ever known, parents recommended by the Case Manager and Guardian ad Litem who know them best, and whom everyone agrees are good parents.

How is it not in Ethan's best interest to be adopted by his good parents?

I'm just not seeing it. No, I'm not.

© Marzie @ itsaboutchildren.blogspot.com

Appellate Hearing in Ethan's Case

Good Morning Readers. This morning I will be taking notes from the oral arguments in the State's appeal to overturn Judge Maria Sampedtro-Iglesia's judgment of adoption in Ethan's case.

Check back for updates....

© Marzie @ itsaboutchildren.blogspot.com

Sunshine State?

(Image credit: Oversnap @ istockphoto.com)

In less than two weeks, the Third District Court of Appeals will hear Melanie and Vanessa Alenier's case, in which the State of Florida seeks to overturn their adoption of Ethan because they are gay. I hope to blog live.

It's been an interesting month here in Florida. One in which Bill McCollum's efforts to become governor of our state have thankfully been put to an end for the present. And based on his comments recently in Florida Baptist Witness, I can say that I'm relieved to bid him farewell from the state political scene. Mr. McCollum was quoted as stating that he didn't even think that homosexuals should be allowed to be foster parents. I won't get into more of what Mr. McCollum posits in that interview here. One can characterize it as rather narrow-minded, to say the very least.

Today's Miami Herald has an eloquent op-ed column by Charles Perez, titled Florida Has It Wrong. Mr. Perez, a former ABC news affliate anchorman in Miami, speaks of the saga he and his husband Keith endured in their quest to be parents. They finally adopted their daughter in Kansas, which hithertofore, I must confess, I had not considered an extremely liberal state.

Why is it so very hard for those who want to be parents to adopt in our State?  I am still stung by Mr. Perez's account from his column:

"Are you a homosexual?'' she asked.

"Excuse me,'' I responded.

It was not the second question she asked, or the third, but the first question once I told her I was interested in adopting.

She represented Our Kids, one of Miami's premiere adoption agencies. Given Florida's anti-gay adoption laws, I didn't blame her for her question, but I didn't like it.

Unwilling to lie, I told her the truth, and the call ended.

When they sought to adopt through another state, they still had to deal with the homestudy engendered in the State of Florida. It was negative for the following reason:

"This agency -- regrettably -- cannot pursuant to Florida Statute 63.042(3) approve either Mr. Perez or Mr. Rinehard for adoption. . . . But for Florida Statute 63.042(3), this agency would highly recommend Mr. Perez and Mr. Rinehard as adoptive parents without reservation.'' 

In a final slap from Florida, after Mr. Perez and his husband were finally able to adopt in Kansas, their insurers refused to let them obtain health insurance for their daughter because the State of Florida does not recognize her adoption by them because they are gay.

How can my state be so wrong, so very sadly wrong? Does it even matter how we got here? We need to find the political and public will to FIX THIS, people.

Hearty congrats to Charles and Keith on the birth of their daughter.

© Marzie @ itsaboutchildren.blogspot.com

New Data and Maybe Eventually New Policy? Let's Hope So, Florida.

In a great blog post today in the NY Times,  Lisa Belkin says "Data drives policy. Or, at least, it should." She cites a new article in the journal Applied Developmental Science, by Farr, et al, titled:  “Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?” which finds no indications that a ban on homosexual adopters is based in factual risk to children. "From a policy perspective, our results provide no justification

for denying lesbian and gay adults from adopting children... Indeed, barring adoptions to prospective lesbian and gay parents seems likely to produce a number of undesirable outcomes." This is but the latest in a flood of articles on the topic of that also include "US National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents" which is available for free from the premier journal Pediatrics.

These two articles are great additions to the arsenal of arguments as to why the sexual orientation of an adopter is not as important as the parenting skills and commitment of the adopter. 

©  Marzie @ itsaboutchildren.blogspot.com

Fight to Adopt's Fundraiser Attracts a Crowd

Melanie and Vanessa

Melanie and Vanessa Alenier's fundraiser for Fight to Adopt, their fledgling organization to help fund their forthcoming appellate case against the State of Florida's opposition to their adoption of their son Ethan was a huge success. The sold out event was attended by a state senator and a city commissioner and a broad range of supporters. Vanessa was emotional when discussing how much all the support, especially that of her lovely GAL Jackie, means to her and to Melanie. But most of all, how much it means for Ethan. These women so obviously love their son. And they so obviously just want to make that love permanent, legal, and go on with their family's life together. But they are mindful that their situation has wider implications for all gay prospective adopters in Florida.

It's a sad thing that because of divisiveness in the Florida legislature that your tax dollars and mine are going to try to prevent families like the Alenier family from achieving the permanency that children like Ethan need. But if the Courts are the only way to overturn this law, which is so very much not in the best interests of many children who would be adopted by their gay caregivers, so be it. The State of Florida has wasted so much money on fighting adoptions that have been allowed by judges looking at the facts and at children's best interests as recommended by GALs and case managers. If the Courts are the only route to get Vanessa and Melanie's names on Ethan's birth certificate, then bring it on!

On September 8, 2010, I know I'll be in the gallery of the Third District Court of Appeals. Silently cheering Vanessa and Melanie's attorney Alan on. I just hope that it won't take as long for them to get resolution as it has taken Martin Gill and his sons to get resolution on their appellate ruling on Gil's adoption of his two sons.  Their case was argued before the Third District Appellate Court back on August 26, 2009. There has still been no ruling in that case. I simply cannot imagine what that long delay in the ruling has meant for Mr. Gill, his partner and their two sons "John" and "James". Ethan Alenier has been so fortunate to have come to Vanessa and Melanie at such an early age, younger even than "James" arrived at the home of Mr. Gill and his partner. "John", who arrived with his brother "James", at age 4, was less fortunate. He wouldn't speak, couldn't hold a pencil and had never even seen a book before. "John" and "James" have thrived in Gill's home, literally the only home that "James" has ever known. The same is true for Ethan, who has thrived in Melanie and Vanessa's care since shortly after his birth.

How can anyone say that these fine people are not fit to be permanent parents? The children involved have had so much go wrong in their early lives. Don't let's have our State take away the one thing in these children's lives that has been right.

Melanie, Ethan and Vanessa

© Marzie @ itsaboutchildren.blogspot.com

Why Ethan's Mamas Are His Mamas

I live in a state where some things are done right (no offshore drilling, though now we have our neighbor's oil) and some things are done very questionably. According to the Florida Department of Children and Families own statistics, in November of 2009, 19,229 children were in foster care in the State of Florida. Some will return to their families but sadly, many children will not. The lucky ones will find a new home, in some cases within their own biological family. 


Currently, when you log into the Florida Adoption Exchange, you see this:

According to the statistics in that display, at a minimum we can say that 648 single children, and at least 70 additional children who only wish to be adopted as part of a sibling group, are available for adoption. As a Guardian ad Litem in the State of Florida, I can assure you that many, many of these children are teens and they have been in foster care, in many cases, for their entire lives. I just have had two young women "age out of the foster care system" and both had been in the care of the State of Florida since birth. One did not even have a first name on her birth certificate until two years before she turned 18.

When I open my Miami Herald every once in a while, I see something like this:

(Image Credit: Barbara Fernandez for the Miami Herald)

Above you see Ethan. He's my focus here. The lovely ladies in the photo are Melanie and Vanessa and while I can say loads of good about them, this post is really about Ethan. Ethan was taken into supervised care at birth, in January 2009. In a short burst of events he was born and at only 9 days old was placed with Vanessa, a relative. Ethan has thrived in Vanessa's care. Not surprisingly, since Vanessa and Melanie love Ethan, they wanted to adopt him. But Vanessa describes filling out the overwhelming (and, unless you've adopted a child, you really and truly cannot relate) number of forms to adopt him and coming to her watershed moment.

From the Miami Herald:

"...the application included a simple question.

Are you gay?

Vanessa, 34, said she did not want to begin her journey as a parent with a lie. So she told the truth -- despite Florida's 33-year-old law banning gay men and lesbians from adopting."

Vanessa and Melanie are the only mothers, the only parents, that Ethan has ever known. The State of Florida saw fit to place the child in their care, after being concerned enough to remove him from his biological mother's care. They were good enough to wipe his bottom, soothe his tears, cool his fevers, help him take his first steps and babble his first words. But in my state, they were not good enough to be his forever parents. Until January 2010, that is. On January 14, 2010 a Final Judgement of Adoption was signed by Miami-Dade County Circuit Court Judge Maria Sampedro-Iglesia permitting Vanessa to adopt Ethan after an evidentiary hearing about Vanessa's fitness to adopt concluded that the only bar to her adopting the child was that she loved and had sex with another woman. Judge Sampedro-Iglesia found that Florida's ban on adoption of children by homosexuals was unconstitutional. The State of Florida is currently appealing Judge Sampedro's ruling.

I could say a lot of things about the logic of finding that someone is fit enough to be paid to care for a child but not fit enough to be paid far less and to care for a child for the rest of his life as a minor and commit permanently to assisting that child to ford the difficult passage through life that awaits children and young adults today. I could, for instance, mention the recently published article in Pediatrics, The Journal of the American Pediatric Society,  which studied, in a longitudinal fashion, the 17 year old children of lesbian parents and concluded: "The... adolescents (studied)  are well-adjusted, demonstrating more competencies and fewer behavioral problems than their peers in the normative American population." I could point out that our own Governor, Charlie Crist, now says that he does not oppose gay adoption. I could argue about it being unconstitutional to make a law that gives greater power to child welfare department of the state in deciding a child's welfare than that of its Courts, or to prevent the pursuit of happiness or to invade someone's privacy by asking what gender their lover is. I could talk about the evidence that sexual orientation is hardwired into our brains and that all evidence points to it being genetics rather than choice that makes a person homosexual and that if that's true, you might as well say blue-eyed people can't adopt either. 

But that's not the point to me. The point is Ethan. Ethan has thrived in their care. They are all he knows. They love him and I deeply believe that every child deserves to be loved and have permanency. There are more than 648 children, possibly as many as 3000, in my state waiting for a loving adoptive parent.

Ethan found his parents.

Does our state really have the right to tell this child they aren't his mamas are just because he has two of them?