Wednesday, August 12, 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



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


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 Poweand 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 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?

Friday, February 8, 2019

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.

Wednesday, August 1, 2018

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.

Monday, July 9, 2018

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.

Thursday, June 14, 2018

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.

Tuesday, May 2, 2017

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.

Friday, December 16, 2016

Williams Institute marks a very personal 40th anniversary

I want to express my deep thanks to the Williams Institute at UCLA Law School for honoring the 40th anniversary of a law review article that Nan Hunter and I co-wrote  and published in 1976 entitled The Custody Rights of Lesbian Mothers: Legal Theory and Litigation Strategy.

Williams sponsored a webinar at which both Nan and I spoke, with commentary for Courtney Joslin of UC Davis Law School and Kim Pearson of Gonzaga Law School.  You can watch it here:   And these were my remarks:

            The cutting edge of the law affecting lesbian mothers today lies not in the cases that Nan and I wrote about 40 years ago, but in disputes that call into question the definition of parent, questions like: When does intent or conduct create parentage in the absence of biology, or can a child have three parents, or four?  But the increased visibility and acceptance of same-sex relationships has not stopped the phenomenon we described in the 1970’s:  a man or woman entering a heterosexual marriage, having children, and only later coming out as gay or lesbian.
            The formal law in those cases has changed since the 1970s.  No state asserts that a parent in a same-sex relationship is per se unfit.  In fact all states say that a parent’s same-sex relationship itself is not sufficient reason to deny that parent custody.  Yet such parents continue to have reasons for concern in contested cases, even in states with overall supportive law.  In the short time I have today, I am going to describe one such case and mention the reasoning of other cases.  I also want to take special note of the vulnerability of transgender parents.
            Last month, the Washington State Supreme Court heard argument in Black v Black.  Charles and Rachel Black were married for roughly 20 years and had three sons.  They raised the children in a conservative Christian home and the children attended conservative Christian private schools. Rachel was a stay-at-home mom. When the children were approximately 12, 9, and 4, Rachel told Charles she was a lesbian.  Up through the end of the divorce proceedings, three years later, the parents lived within the same home, in separate sleeping quarters, although Rachel began a relationship with a woman.
            The parents each requested the equivalent of primary physical custody and decision-making authority over education.  Rachel wanted the children to attend public school rather than a school that teaches that homosexuality is a sin. 
            I’m sure you can see where this is going.  The Guardian Ad Litem criticized what she called Rachel’s “choice” to leave the marriage and live with a female partner and said that her “choice” caused controversy and confusion. Although the statute allowed a court to consider a CHILD’s religious beliefs in deciding custody, there was no evidence presented about the children’s actual religious beliefs.  Rather, the trial court said that the father was the more stable parent, because he would remain in the family home, keep the children in the same school and maintain their religious upbringing.  The court also ordered no contact with Rachel’s partner and no exposure to anything involving homosexuality until approved by the therapist.
            Washington state has long had law prohibiting restrictions based on a parent’s sexual orientation.  A trial court cannot impose restrictions “designed to artificially ameliorate changes in a child’s life” or simply because it believes the restrictions will make the post- marriage transition easier for the child. So the Court of Appeals overturned the trial court’s imposition of restrictions.  But it upheld the decision giving primary physical custody to Charles, finding no abuse of discretion and specifically crediting the GAL’s recommendation based on the children’s need for stability.  It also upheld Charles’s sole decisionmaking authority on the children’s education, thereby guaranteeing they will remain in a school environment that teaches them that their mother is sinful.  It is that appeals court ruling that is currently before the Washington Supreme Court. 
            Notably, Charles does not maintain in his brief, nor did his attorney at oral argument, that there is any problem with Rachel being a lesbian.  Nor does he seek to reimpose restrictions on her visitation. Charles once referred to Rachel as a “militant lesbo,” but he later said he regretted that comment and that it was made out of anger and hurt.  He now focuses completely on the argument that custody with him serves the best interests of these children, given the upbringing they received during the marriage and their need for stability. But completely absent from the court rulings to date, in this case and in other recent appellate decisions, is any articulation of a heterosexual parent’s obligation and responsibility to assist the children in adjusting to having a gay or lesbian parent. Charles quotes the GAL’s position that keeping the children in their schools was “safe from an emotional perspective.”  But this is a twisted conception of emotional safety, one that ignores the teachings the children receive in school about their mother.
            In a number of other cases within the past decade, appeals courts have upheld custody awards to a heterosexual father over a lesbian mother based on a child having a difficult time adjusting to the mother’s same-sex relationship or even just feeling uncomfortable around the mother’s partner.  There is no doubt that some children do feel this way.  But not one opinion describing such facts places responsibility for the child’s difficulties on a heterosexual parent for refusal to assist the child’s adjustment to a new reality.  A gay parent can be faulted for allegedly placing her own needs above her child’s, while no heterosexual parent has been faulted for placing his needs above his child’s when he fails to ease the child’s acceptance of the mother’s new relationship.  Until courts do assess the non-gay parent’s suitability based on his willingness to facilitate the child’s acceptance of having a gay parent, lesbian mothers and gay fathers remain vulnerable to losing custody and facing visitation restrictions. 
Perhaps the most I am willing to say today is that when a parent has stable employment and housing and has not had multiple partners, and when her children show no signs of distress and do not oppose remaining with her, then she can be more confident than her counterparts 40 years ago. In the absence of any of those factors, she still faces, in more subtle ways, the vulnerability we wrote about.  I also want to alert everyone to a possible future issue.  Until the last few years, disapproving courts have been able to lump all same-sex relationships with unmarried different-sex relationships, and to restrict a child’s exposure to any nonmarital partner, something courts have repeatedly said is distinct from the parent’s sexual orientation.  Now that all same-sex couples have the option to marry, we may see overt disapproval of those who fail to do so.
            For my second point today, I want to talk about parents who transition after or at the time of divorce.  We reported in our 1976 article about the case of Christian v. Randall.  In that case, a mother had custody of her four daughters and then transitioned.  A Colorado trial court changed custody of the children to their father, against their wishes.  The appeals court reversed, finding that the “transsexual change” had had no adverse impact on the children.  I could never have imagined that, forty years later, that case would remain the single most definitive victory for a transgender parent in a contested custody dispute.  Notable in the case, however, is that the children were all thriving and wanted to remain with their mother.   Those factors are not dependably true in any child-related dispute, let alone one involving children’s reactions to a parent’s gender transition.
            I can’t be too blunt about this.  Transgender parents are facing a landscape much like the one gay and lesbian parents faced 40 years ago.  In the section of our article on litigation strategy, we began with the recommendation that the case be kept out of court.  If you open the fine materials available today to assist transgender parents and their attorneys, like Jennifer Levi’s Transgender Family Law, you will find the same advice.  A necessary component of such a strategy includes careful consideration of how both the spouse (or ex-spouse) and the children are made aware of the impending transition.  There are minefields everywhere. 
In one case a nine year child went to visit her father in another state, observed his “feminine features,” and told her mother she did not want to visit again.  The mother made no effort to assist the child’s acceptance of having a transgender parent.  The child did not see her father again until the day, six years later, when she testified in court that she wanted to be adopted by her mother’s husband so that she could have a real father.  The effect of that adoption was to terminate the rights of the transgender parent, which the court did by finding by clear and convincing evidence that the parent had inflicted emotional injury on the child.
In another case, where a mother and father began with 50-50 joint physical custody, the mother filed for sole custody based solely on the father’s transgender status and impending gender reassignment surgery.  The trial court granted the mother’s petition, once again invoking the children’s need for stability and noting that the impact of the father’s upcoming surgery was “uncertain.”  But no doubt mindful that the legal standard did not permit modification based on transgender status alone, the trial court made some other factual findings in support of its order.  This allowed the appeals court to affirm, citing the ubiquitous “no abuse of discretion” standard, and provoking a scathing dissent.
The positive trajectory for gay and lesbian parents over the last 40 years may be a harbinger that transgender parents will find greater acceptance in the future.  But recognizing the circumstances under which gay and lesbian parents remain vulnerable is cautionary, and reinforces the importance that all such parents find well-prepared counsel before a dispute with a former spouse escalates into contested litigation.