HBO's Nuclear Family tells the story of lesbian parenting at a time when the law was very different

            WNBA superstar Diana Taurasi returned home from the Tokyo Olympics this summer with her fifth gold medal, but she told a local journalist that nothing in 2021 would surpass the upcoming birth of her second child to wife and former teammate Penny Taylor. Their family, two moms and two children, enjoys social acceptance and legal protection entirely unavailable in 1979 to Robin Young and Sandy Russo, who goes by Russo, the family at the heart of the HBO docu-series, Nuclear Family, which aired this fall.

Robin and Russo’s path to parenthood was not paved by Olympic stars nor facilitated by a world of information on the internet. They had little in the way of role models, but they did have a pamphlet, self-published by lesbians in San Francisco and sold in women’s bookstores, demonstrating the process of self-insemination using donor semen.  All they needed were two men, willing to donate sperm without assuming any rights or responsibilities of parenthood.  Today they could find an anonymous donor through a sperm bank; or a doctor willing to perform the insemination using known donor sperm; or they could undergo removal of one mom’s egg followed by in vitro fertilization using donor semen and implantation and gestation in the other mom; or they could adopt.  There are role models everywhere.

                Most importantly for understanding the family drama that unfolded in Nuclear Family, in the early 1980’s Russo and Robin had no way to protect the integrity of the family they had formed. Today, in some states, the joint endeavor of donor insemination would automatically make both women legal moms and would automatically eliminate the parental rights and responsibilities of a sperm donor. In every state, the non-biological mom could adopt the child, creating full legal parentage and formalizing the donor’s agreement to forego parental status. The birth certificate of a child born to a married lesbian couple today bears the names of both spouses as parents, although experts recommend the extra step of adoption to confer universal acceptance of the non-bio mom’s right.

But in 1981, when Ry Russo-Young was born, there had never been a second parent adoption by a same-sex partner; the first one in New York came over a decade later, in 1992, and the practice was not approved by the highest court in New York until 1995.  Same-sex marriage would not come to New York until 2011.  Robin and Russo asked two gay men they met through friends in San Francisco to donate sperm so each could bear a child.  Both men agreed that the two women would be the parents, but they were willing to meet the children in the future if they moms wanted. Today that arrangement could be confirmed in court, but at the time it was an arrangement based on trust. Nuclear Family tells the story of how the trust disappeared when one donor, Tom Steel, filed an action for paternity when Ry was 9 years old.

The path to the litigation began when Ry was three and the moms travelled with both children to San Francisco to meet the donors.  Ry’s sister Cade had a different donor, and no significant relationship developed between him and the family.  But Ry’s donor, Tom, became a family friend. There were visits and family vacations, all involving both moms and both girls.  Ry knew Tom was her biological father, but she also knew that Cade was her sister and Robin and Russo her parents. 

Then when Ry was 9, Tom asked Robin and Russo to send her alone to California to attend a gathering of his biological family.  The moms refused.  Had Russo’s legal status as Ry’s mom been secure, as it could be today, that would have been the end of it.  He might have asked the following year, and they might have said yes. But the law at the time did not recognize Russo as a parent, and Tom’s paternity action made clear that he did not either.  He filed against Robin only, excluded Russo from the court proceedings, and claimed he was Ry’s father and had the full rights of parenthood, even though she had never spent a single night with him without her moms.  Although among friends and colleagues Tom claimed that Ry’s expansive family included both Russo and himself, that was not what he said in court.

The story of the subsequent four years of litigation has been told before in magazines and even a documentary.  But that child, Ry Russo-Young, grew up to be a filmmaker, and, at 40, she made Nuclear Family to explore for herself those defining years of her childhood.  It’s a riveting human interest story, but it is also a story about the law at a time before today’s Olympians were born.

Fulton v. City of Philadelphia: The Challenge of Fighting BOTH Discrimination Against LGBT Foster/Adoptive Parents AND Excess State Removal of Children from Their Parents

 

LGBT FAMILY LAW INSTITUTE 2020

Fulton v. City of Philadelphia: The Challenge of Fighting BOTH Discrimination Against LGBT Foster/Adoptive Parents AND Excess State Removal of Children from Their Parents

Presented by Nancy Polikoff, American University Washington College of Law

npoliko@wcl.american.edu

 

What is the child welfare system?

The child welfare system is a regime of public, private, and faith-based entities and individuals authorized by force of law to remove children from their parents and terminate the parent-child relationship. It includes a massive foster system in which the state pays vastly more money to strangers to raise other people’s children than it is willing to provide parents to raise their own children. Almost 20 years ago, in Shattered Bonds: The Color of Child Welfare, law professor Dorothy Roberts wrote, “If you came with no preconceptions about the purpose of the child welfare system you would have to conclude that it is an institution designed to monitor, regulate, and punish poor Black families.”  Those words remain as true today as they were in 2001. A nascent movement, building on prison abolition work, seeks to abolish the child welfare system, better referred to as the family regulation system.  The demands of the Movement for Black Lives include "Eliminate the foster system's power to permanently and irreversibly destroy Black families through termination of parental rights." For more information, visit the Movement for Family Power and the Center for the Study of Social Policy UpEND Movement, and please plan to attend the Columbia Journal of Race and Law 2021 Symposium, Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being.

How do LGBT parents interact with the child welfare system?

LGBT parents interact with the child welfare system in two ways: 1) they experience removal of their children and termination of their parental rights; and 2) they seek to be foster and adoptive parents.  You have likely heard way more about the latter group than the former, because LGBT advocates vigorously oppose laws that permit agencies to refuse to license foster and adoptive parents.  Also, couples wanting to foster and adopt were highly visible in same-sex marriage litigation and activism.

Do we really need to be concerned about LGBT parents whose children are removed by the state?

YES! A research study of African-American mothers that asked questions about sexual orientation in conjunction with questions about loss of children to the state found to a statistical significance that the mothers who identified as lesbian/bisexual were over four times more likely to have lost their children than those who identified as heterosexual. There is no data on the number of LGBT parents who have lost their children to the state.  There is, however, data showing that lesbian mothers and same-sex couples are disproportionately African-American and economically disadvantaged, and that they live in the same neighborhoods as low-income African American heterosexual mothers -- the very group, in the very neighborhoods, most targeted for child removal.  In addition, there is research showing that LGBT individuals, many of them parents, disproportionately experience many risk factors that correlate with facing child welfare investigations, such as homelessness and housing instability, food insecurity, substance abuse, incarceration, a history of physical or sexual abuse, and having been a foster child oneself.

LGBT parents experiencing child removal face some unique issues: discrimination in both the removal decision and the decision whether to reunite the family; failure to treat a nonbiological parent as a legal parent; and failure to treat chosen family as relatives and kin, which carries special meaning in child welfare placement decisions.  Just consider this:  some of the same agencies that refuse to license LGBT foster and adoptive parents provide case management services to parents whose children have been removed and placed in foster homes. They have the power to determine that a child will never go home to a lesbian mother.

But beyond LGBT specific issues, we need to be concerned about all child removal decisions.

Injustice pervades all child removal decisions

Child removal is a vital matter of racial and economic justice. Over the past twenty years, lawyers, academics, policy makers, activists, and parents have written and spoken about the defects in, and harms inflicted by, the child welfare system.  Critics have identified, among other concerns: misidentifying poverty as neglect; widespread due process violations; denying services that are legally mandated to prevent child removal or reunite families who have been separated; inadequate mental health and substance abuse treatment and the ever-more-frayed safety net; untimely and ineffective legal representation; inappropriate reunification requirements; vague standards; misdiagnoses of child abuse; drawbacks of mandatory reporting; consequences of child abuse registries; financial incentives  for foster placements and adoptions but not for returning children to their parents; the foster-care industrial complex; mistreatment and bad outcomes of children in foster care; differential application of laws; the impact of increasing income inequality; and, unrelenting, ongoing, structural racism, which commonly goes by the gentler term “racial disproportionality.” During this period there have been some new studies, laws, regulations, and practices, yet the evils persist.

This is our challenge

Discrimination against LGBT individuals and same-sex couples who want to foster and adopt is wrong.  But so far the primary argument LGBT advocates make in opposing such discrimination is that there are so many children in need of foster and adoptive homes.  Here is one example: “There are approximately 400,000 children in the U.S. foster care system, 100,000 of whom are waiting to be adopted. Unfortunately, because of a lack of available adoptive parents, 23,000 of these youth will leave foster care without ever finding a permanent, loving home.” (emphasis added).  Such an argument presumes that the children in the foster system are rightly there; that the evils described in the previous section do not exist; and that what is needed is more adoption, including by LGBT parents.  These presumptions clash with the demands of racial and economic justice activists to remove fewer children and reunite those who are removed. And remember that there are likely a disproportionate number of children of LGBT parents in the foster system.

And so...in the face of the racism and other injustices that result in child removal, including disproportionate removal from poor, Black lesbian/bisexual mothers, (how) is it possible to argue that discrimination against LGBT people who want to foster and adopt is wrong?

What ELSE is wrong with Philadelphia Catholic Charities?

Catholic Charities in Philadelphia refuses to licenses same-sex couples as foster and adoptive parents.  That stance cost them their contract with the city -- in other words public funding -- to serve as an agency that certifies foster and adoptive parents for children in foster care. Philadelphia has an ordinance that forbids contractors to discriminate on the basis of sexual orientation. Since Catholic Charities does discriminate, it could not remain a city contractor.

Catholic Charities responded to the city's action by suing, claiming that it is the subject of discrimination...on the basis of its religious beliefs.  So far, it has lost. This conflict is one of many across the country, as organizations and individuals assert a constitutional right to discriminate or seek a legislative right to do so.  The Movement Advancement Project does a good job of tracking existing and pending  actions.

But as this article explains, Catholic Charities continues to serve as a community umbrella agency working with children in foster care and their families.  The city has not cancelled that contract.  Here is the map that shows how much of the city lies within Catholic Charities' purview.  In its function as a community umbrella agency, Catholic Charities provides case management services that determine whether a child, once removed from parents, is returned to their care.  Reunification services can be the most critical component of determining a child's fate.  If an agency determines that a parent should attend classes, mental health counseling, or job placement services, the parent's failure to do any of those things can lead to termination of parental rights.  If an agency sets up a parent's visitation with her child at a particular place on a particular day, the parent's failure to attend can lead to termination of parental rights.  That the services may be unnecessary; that the schedule might conflict with a parent's job, or care responsibilities for other children, or other appointments for housing assistance or some other necessity; those things may turn out to be irrelevant.  The power of the supervising agency to set the rules and then determine if they have been broken is, literally, awesome.

So what's the problem?  Aside from the unreasonable demands frequently placed on all parents of children in foster care, some of those parents are LGBT and have same-sex partners or ex-partners.  Catholic Charities admits it will not license same-sex couples as foster or adoptive parents.  We should assume that the agency thinks equally badly about the parents in same-sex couples trying to get their children back from foster care.  The power to supervise families with children in state care is the power to determine where those children end up.  If Catholic Charities wants those children in an adoptive home with a married mom and dad, or in a kinship home with a homophobic relative, that is where they will end up.  No case manager has to state up front that the child will not go home to a lesbian mother; there are just so many ways to achieve that result without being direct.

The case manager can also place the child in a foster home that denigrates LGBT individuals and same-sex couples.  Heck, the case manager can place an LGBTQ child in a foster home that denigrates LGBT individuals and same-sex couples.  THAT is a lot of power.

The subject of LGBT parents whose children are removed by the state has not made it to the top (or even the middle or the bottom) of the agenda of any LGBT advocacy organization.  This even though the one research study looking at the sexual orientation of parents who lost their children found that, among low-income Black mothers, those who identified as lesbian or bisexual were over four times more likely than those who identified as heterosexual to have lost their children to the state.  Well those parents are at the top of my agenda, and my article about them, Neglected Lesbian Mothers, will be out shortly in the Family Law Quarterly.

There's a lot that LGBT advocates could be doing. But with an organized effort underway to stop agencies from discriminating against LGBT foster and adoptive parents it should be a small, but hugely significant step, to add to the demands that no agency that refuses to license gay people as foster parents should be able to supervise families with children in foster care where either a parent or the child is LGBT.  I'm talking about YOU, Philadelphia Catholic Charities.

Yes, Sarah and Jennifer Hart played the lesbian card

By now I have read so much about the white lesbian mothers who murdered their six adopted black children, Cierra, Jeremiah, Abigail, Markis, Hannah, and Devonte Hart, that I did not think I would have anything to add.  But I sat down to review the 2013 file released by Oregon CPS anyway.

The investigation in Oregon was triggered by two reports of child endangerment, one claiming the children were malnourished and the other reporting Jennifer's harsh punishment of the children. The file includes the information provided to Oregon CPS by Minnesota Child Welfare about incidents when the family lived in that state going back to 2010, including Sarah's domestic violence conviction in 2011 for her physical abuse of one child.  (Before 2010 - in 2008 - Hannah, then 6, went to school with a large bruise and reported that her mother hit her, but the authorities believed the couple's explanation that Hannah fell down the stairs and nothing came of the allegation.) Most of the reports in Minnesota came from the children's teachers, and immediately after the report that triggered the criminal charges, Jennifer and Sarah removed the children from school and began to home school them.

Naturally, the Oregon investigator asked the couple about their involvement with Child Welfare in Minnesota.  And that part of the report is where I found a detail that I think no one else has reported.  "Ms. J. Hart and Ms. S. Hart," the report states, "believe they have been targeted due to being a vegetarian, lesbian couple who married and adopted high risk, abused children..." Yes, that's right.  They played the lesbian card, attempting to deflect attention from how they actually treated their children by claiming to be victims of homophobia.

I'm not saying Oregon CPS was fooled by the couple's claim.  An investigator spoke to each child alone, and none reported abuse or the withholding of food. (The report does note that "the children provided nearly identical answers to all questions asked.").  Each child was evaluated by a doctor, who expressed no concerns even though five of the six children were so small they were not on the growth chart.  The disposition of the Oregon CPS investigation was "unable to determine," meaning that "there are some indications of child abuse or neglect, but there is insufficient data to conclude that there is reasonable cause to believe that child abuse or neglect occurred."

The couple subsequently moved to Washington, and of course we know that state's investigation was about to get underway, prompted by the children begging a neighbor for food and help, when Jennifer and Sarah headed south with the children, and Jennifer drove their SUV off a cliff and into the Pacific Ocean in California.

I consider it good news that coverage of this tragedy has not been accompanied by calls to ban gay and lesbian adoption.  But the bad news is this:  At least for the children born to Texas mom Sherry Davis (Devonte, Jeremiah, and Cierra), there was a kinship adoption proceeding that the Texas courts rejected.  And that was its own, independent tragedy.  Priscilla Celestine lost her bid to adopt the children because she allowed the children's mother, Sherry, to see them while she was at work.  The social worker made an unannounced visit and took the children away instantly.  There was no allegation that Sherry harmed or endangered the children during the visit, just that contact with Sherry was prohibited. Priscilla continued her efforts to regain custody of the children through the Texas courts, losing at each step.

Sherry Davis lost her parental rights because she was a cocaine addict.  Now consider this: The state of Texas paid the Harts close to $2000 a month as an adoption subsidy, for a total of about $277,000 over most of a decade.  Let's assume (and I don't know if this is true), that half of that was for Sherry Davis's biological children.  Imagine if the state had made available to Sherry $1000 a month for drug addiction treatment and other assistance, every month for almost 10 years.  Sherry did get clean, but not fast enough for the state of Texas.  Or the federal government for that matter, which mandates pursuant to the Adoption and Safe Families Act that states move to terminate parental rights after 15 months, even though successful drug treatment often takes longer than that.  Devonte, Jeremiah, and Cierra could have had an extended family and, ultimately, their mother also, if the state had permitted the children to remain with Priscilla.

At one time, Sarah and Jennifer Hart might have been the poster couple for same-sex marriage, a white lesbian couple who adopted two black sibling groups out of foster care.  Judge Posner would have loved them, and I would have hated his reasons for doing so, as I wrote about here.  LGBT advocacy groups would do well to remember that many of the children in foster care and available for adoption should not be there; that the state is too quick to remove children from economically disadvantaged mothers of color, some of them lesbian and bisexual mothers; and that the solution to the disproportionate number of black children in the foster care system is not more adoption by same-sex couples but more resources to the families those children come from, including safe and affordable housing, adequate drug treatment, and other components of a robust social and economic safety net.  Since by now we know that LGBT individuals are disproportionately poor, incarcerated, homeless, and food insecure, such a safety net should be as important to the LGBT family agenda as stopping discrimination against same-sex couples who want to be foster and adoptive parents.

NY appellate court gets Gunn v. Hamilton wrong

The New York Times and the New Yorker are among the outlets that extensively covered Kelly Gunn's court action asserting parentage of Abush, a child adopted by her ex-partner Circe Hamilton.  The trial court ruled against Gunn, finding that the couple's plan to adopt a child together ended when their relationship ended, over a year before Abush was even identified as a child available for Circe to adopt.

Late last month, the appellate court refused to put the matter to rest.  It agreed with the trial court that Kelly was not a parent based upon the couple's earlier intent to raise a child together.  But it sent the case back to let Kelly try to prove that she should prevail on the grounds of equitable estoppel.  Circe did allow Abush to develop a relationship with Kelly, but it was never a parental relationship.  Kelly even referred to herself at one point as assuming a godmother role.

I find the result shocking.  Lots of children have extremely close relationships with adults other than their parents.  When the parent decides to relocate with the child, which is what happened here when Circe wanted to return to her native London, the child and adult may miss each other very much.  Nonetheless, a parent can make that choice about her family for reasons too numerous to list, such as cheaper cost of living, job opportunities, education opportunities, a new primary relationship, and family support.  

There was extensive evidence about Abush's relationship with Kelly and none of it pointed to a parent-child relationship.  The appeals court seems to think the child's perspective is necessary, but there is nothing the child can say that would turn Kelly into a parent.  And if the child's voice reported a close relationship with Kelly, that would still not make her a parent.  I find it useful to run the facts of the case through the new Uniform Parentage Act.  The UPA enumerates several paths to parentage, including a de facto parentage path.  Kelly would meet none of the UPA tests.

It is dangerous to allow the kind of challenge to a parent's authority sanctioned by this appellate court ruling, and it is especially dangerous for single parents.  I say this because I think the result would have been different if Circe had been raising Abush with a partner, even if the child had spent exactly the same amount and quality of time, and developed the same relationship, with Kelly.

We need to talk about LGBT parents who lose their children to the child welfare system

I have written about lesbian mothers, and LGBT parents more broadly, in many contexts.  But from now on I'll be concentrating on one context...child welfare proceedings that remove children from their parents and that can result in termination of parental rights.  My first post on this topic was on the website of the LGBTQ Poverty Initiative, whose report, Intersecting Injustice, was recently released.  Read Invisible and Ignored: LGBT Parents in the Child Welfare System here, and stayed tuned for more.

Who says a child's two parents have to be a "couple"? Not Canada

With many states requiring same-sex couples to marry before they can both be parents of the same child, it's great to read this story out of Ontario, Canada, about two women committing to parentage without ever having had a conjugal relationship with each other.  Elaan has two parents who are very close friends.

About three years ago, a New York judge allowed a gay man to adopt the child he was already raising with a female friend.  The two friends tried conceiving a child through insemination but were unsuccessful.  They remained committed to co-parenting and arranged to adopt a child from Ethiopia.  Because they were not married, only one could adopt the child overseas.  The woman adopted the child and returned to NY, where the two petitioned to have the man do a second-parent adoption.  In that case, the court had to find that the two friends met the definition of "intimate partners" in the statute.

I want to give a shout out to Angela Kupenda, who wrote twenty years ago about the model of two African-American adults adopting a child together in circumstances where each might hesitate to take on parenting alone.

This isn't uniquely a gay rights issue, but being gay means pregnancy will not happen by chance.  It will take planning.  It calls out for creativity, more creativity than is found in limiting joint parenting to married couples of any gender combination.