Experts, foster parent discuss Florida gay adoption ban
“At the center of this case, and every other case, is a person.”
Shelbi Day, an American Civil Liberties Union attorney who represented a gay man and his partner in a case challenging an adoption ban for gay people, said those words at a recent panel discussion on gay adoption Wednesday, Sept. 29, just one week after the Third District of Appeal struck down a state law barring gay people from adopting.
The American Civil Liberties Union and the ACLU of Florida called the decision a victory for thousands of children in Florida waiting to be adopted.
University of Florida Levin College of Law Center on Children and Families authored one of several amicus briefs in the case, an effort led by Joseph Jackson, UF legal skills professor and associate director of the Center. The brief involved the collaboration of many faculty members within the Center, including former Director Barbara Woodhouse.
Day and Jackson, along with Martin Gill, the foster parent who challenged the Florida statute banning gay adoption and CCF Director of Research Lauren Fasig, an expert in child development, sat on the panel in front of more than 100 attendees.
The standing-room-only event revealed the struggles Gill and his partner have faced the past seven years since receiving their license to foster children in 2003, the elation they felt in November 2008 when the Circuit Court granted Gill’s adoption petition, and the hardships they endured after having that decision stayed by the State’s appeal.
In December 2004, Florida’s Department of Children and Families asked Gill and his partner to foster two boys – a 4-month-old and a 4-year old – suffering from neglect. At the time, Gill and his partner planned to move to Georgia, and felt it would be unfair to uproot the children – who at the time had future plans to live with relatives – so, they said no.
It was right before Christmas, and DCF tugged on the couple’s heartstrings to give the children a home for the holidays. They gave in.
Upon arrival, the children were sick with ringworm, but Gill was told their medication was in the bag that the DCF brought over. Not only had the medication expired, it was unopened and had not been refrigerated in over a month, which was necessary for it to remain effective, he said. The older child slumped against the wall and stared at the floor. Gill knew they had their work cut out for them.
Nearly a year after Gill and his partner fostered the brothers and nursed them to health, DCF sought permanency planning for them. Plans to live with relatives fell through, and a 33-year-old law banning adoption by gay men and lesbians stood in the way of allowing Gill and his partner to legally adopt the boys they had cared for. Currently, Florida is the only state barring gays from adopting.
But when Gill met with DCF to discuss permanency planning, they told him they wanted to advertise the children separately, since the younger one had a better chance of adoption and the older child had some developmental disabilities, Gill said. The couple was floored.
“That child was his brother’s keeper,” Gill said. “It was the only continuity he had for his entire life.”
Gill said the older child was quite a caregiver for such a young child – he even knew how to feed the baby, burp him and change his diaper. He couldn’t bear the thought of these children being separated, and soon sought legal help from ACLU to challenge the adoption ban.
After a four-day trial in November 2008, Judge Cindy S. Lederman issued a 52-page opinion declaring the ban unconstitutional, on the grounds that it violated the equal protection rights of the children and their prospective parents, and granted Gill’s adoption request.
But the couple’s elation waned only 15 minutes later, when the state appealed the ruling and denied Gill and his partner from adopting.
“These are two heroic men who have really gone to battle [for these boys],” said Day, who said the couple has risked a lot to fight for these children.
The District Court of Appeal’s unanimous decision on Sept. 22 was a gratifying feeling for Gill, his partner, his lawyers and all gay-rights advocates after nearly 13 months of waiting for an opinion. Judge Vance E. Salter emphasized in his concurring opinion the importance of the couple in the lives of the brothers, and referred to them as a family. He noted that this case involved “five persons and associated relationships, not just the adoptive parent and the two children… The continued use of the legal system to attempt to unwind these relationships is simply inexplicable.”
During the initial stages of the case, Gill’s legal team had to identify experts from a variety of fields to rebut all possible arguments the state might put forward to justify the ban. Psychologists, HIV/AIDS experts and even experts on pedophilia and sexual orientation, were called to testify, and confirmed that gay people and straight people make equally good parents. In addition, the children were evaluated by a child development expert, who testified that removing them from Gill’s home and/or separating them from one another would cause them to regress socially and educationally and lead to serious and permanent harm.
A focus of the Center’s brief was to explain to the court the serious harms children suffer when they are repeatedly moved around in the foster care system, Jackson said. Attachment to a caregiver is essential for a child to turn into a grown-up human being, and a child’s ability to form those attachments is undermined when the child bounces around in foster care.
Lauren Fasig cited research that showed that a parent’s sexual identity and/or sexual orientation has little or no effect on that of the child, and that children of gay parents are just as fit for life as those of heterosexual parents.
“To say one group could be parents and others can’t isn’t justified,” Jackson said. “There is no conceivable set of facts that justify that law.”
The state has 30 days to appeal this decision to the Florida Supreme Court. If it does not, then the decision will be binding on Florida trial courts state-wide. However, opponents of the decision could seek to overturn the decision through a ballot initiative to amend the State Constitution.
“If it gets to the point of vote, it’s about getting the word out and educating people,” Day said.