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