Wednesday, September 22, 2010

The Third District Court of Appeals' 3-0 Ruling In re: Gill

Portions of this post are cross-posted at It's About Politics It's About Children.

Judges 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:

"We reject the Department’s remaining arguments for the same reason: they do 
not provide a reasonable basis for allowing homosexual foster parenting or 
guardianships while imposing a prohibition on adoption."

"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."

The 3rdDCA didn't mess around when it came to Dr. George Rekers, he of Rentboy fame. From their ruling:

"Unlike Dr. Schumm, Dr. Rekers sees no role for individual evaluation of the
proposed adoptive parent, if that parent is a homosexual. He maintained that
performing an individualized study of the proposed adoptive parent, like F.G., is
not viable because even if F.G. is found to be entirely appropriate as an adoptive
parent at the present time, it is possible that he may develop some sort of a 
disorder later in life."

11 Dr. Rekers opined at one point that he would favor removing 
children from foster parents who are homosexual persons even where the children 
had lived with the foster parents for ten years. R. 1736. He also said, however, 
that if he evaluated the F.G. household (which he had not done for this case), he 
might recommend continued foster placement. R. 1758.


"Dr. Rekers was questioned about his recent authorship of a law review
article entitled An Empirically Supported Rational Basis for Prohibiting Adoption,
Foster Parenting, and Contested Child Custody by Any Person in a Household that
Includes a Homosexually-Behaving Member, 18 St. Thomas L. Rev. 325 (2005).
According to the judgment, “the doctor heavily cited to the conclusions of a
colleague who is sharply criticized as distorting data and was censured and ousted
[or withdrew in lieu of ousting] by the American Psychological Association for
misreporting evidence regarding homosexual households.” Final Judgment at 20
(footnote omitted). The court concluded that “Dr. Rekers’ testimony was far from
a neutral and unbiased recitation of the relevant scientific evidence.” Final
Judgment at 23."

But 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.
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.

Salter's ruling is both wonderful and accessible.

Things not addressed in the 3rdDCA's ruling? Permanency and Equal Protection for Children. Judge Cindy Lederman's original ruling on the Gill adoption addressed the issue of permanency, which is the primary best interests of these children. The Court refused to take up that argument.

The trial court made an alternative finding that “the statute infringes on the
Children’s right to permanency pursuant to the Adoption and Safe Families Act of
1997, [42 U.S.C. § 671,] adopted in Chapter 39 of the Florida Statutes.” Final
Judgment at 38. The Department contends that this ruling was erroneous. 
Because we affirm the declaration of unconstitutionality on the ground that there 
is an equal protection violation under the Florida Constitution, we need not reach 
the trial court’s alternative holding.

What rights do our children have in this state? Surely, they have the right to permanency? Yet, though the Third District Court ignores the issue, in the Gill case, our own statutes appear to conflict with one another! If we terminate a child's parents' rights, we must pursue all options for permanency. Mr. Gill's children were owed more than a long term foster placement or a legal guardianship by our state. They were owed parents. And they believed that they had found parents.

Thankfully, so did the Third District Court of Appeals.

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 shameful law off the books!

Edited to note:

This afternoon Governor Charlie Crist announced that Florida will no longer enforce the ban on gays adopting in the State of Florida. That does NOT, however, prevent the DCF from seeking an appeal to the FL Supreme Court, does not invalidate the statute and is not a guarantee that future administrations in this state will honor that decision. This is particularly important since Republican gubernatorial candidate Rick Scott has been extremely vocal about his support of the ban. 

© Bright Nepenthe, 2010

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