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Nebraska Supreme Court Ends State’s Anti-LGBT Adoption/Foster Policies

Posted on: April 12th, 2017 by Art Leonard No Comments

The seven-member Nebraska Supreme Court has unanimously affirmed a decision by Lancaster County District Judge John A. Colborn that a formal published policy adopted by the state in 1995 banning adoptions or foster placements into any household with a “homosexual” in residence was unconstitutional, as was an informal policy adopted more recently by chief executive officers of the state’s Department of Health and Human Services under which “exceptions” could be made in particular cases by personal order of the department’s director.

Ruling on a case brought by the ACLU on behalf of some same-sex couples who sought to foster or adopt children but were either discouraged by Department staff members or deterred by the formal policy posted on the Department’s website, Stewart v. Heineman, 296 Neb. 262, the Supreme Court focused mainly on technical issues, as the state apparently conceded that there was no good reason to single out gay and lesbian adults for discriminatory treatment and sought to persuade the court that the case was “moot” and should be dismissed, preferably without awarding costs and fees to the plaintiffs. The trial judge awarded costs and fees totaling more than $175,000, an amount that will increase if fees are later awarded to the plaintiffs for successfully defending their victory in the state supreme court.

The lengthy opinion by Justice John F. Wright is devoted almost entirely to refuting ridiculous arguments mounted by the state to try to convince the court that it lacked jurisdiction to decide the case, rather than to repeating in any detail the evidence presented to the district court about the parenting abilities of lesbians and gay men and the wholesome, well-adjusted children they have raised when given the opportunity to do so.

The complaint the ACLU filed centered on Memo 1-95, an administrative memorandum written by the director of the Department of Social Services (which later became the Department of Health and Human Services) in 1995. The memo stated: “It is my decision that effective immediately, it is the policy of the Department of Social Services that children will not be placed in the homes of persons who identify themselves as homosexuals.  This policy also applies to the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons who identify themselves as homosexuals.”  The memo adopted a similar policy regarding “unmarried heterosexual couples.”  The memo “directed staff not to specifically ask about an individual’s sexual orientation or marital status beyond those inquiries already included in the licensing application and home study,” wrote Justice Wright.  “The stated reason for the policy was this State’s intent to place children in the most ‘family-like setting’ when out-of-home care is necessary,” Wright continued.  The memo contemplated that a formal regulation incorporating its policy decisions would be adopted, but this did not happen.

In fact, there is no formal statutory or regulatory ban on gay people being foster or adoptive parents in Nebraska, as such. Thus, the entire focus of the lawsuit and the court opinions was on the “policy” expressed in Memo 1-95 and subsequent “practices” adopted by the director of the department.

The Memo was posted on the Department’s website as a formal policy statement, and was not removed from the website until after this lawsuit began and motions for summary judgment had been filed with Judge Colborn. The Memo was used in training new staff members, and was referred to specifically by staff members when they discouraged one of the couples from formally applying to get a foster child, which is a prerequisite in Nebraska to legal adoption.

Part of the state’s defense in this case was that although Memo 1-95 continued to appear on the website, it was no longer the actual policy of the Department, as recent chief executive officers had determined that lesbian and gay applicants otherwise qualified to serve as foster or adoptive parents should be allowed to do so. However, this informal policy was not well publicized throughout the department, formal instructions were not issued at the line staff level, and no mechanism for appealing denials based on an applicant’s sexual orientation was created.

Under this “practice,” which was referred to throughout the opinion as the Pristow Procedure, after Thomas Pristow, director of the Division beginning in March 2012, if gay applicants were approved at the line staff level, the approval had to go through four layers of sign-offs, including by Pristow himself. No other potentially controversial placements, such as those with unmarried heterosexual parents or with former prison inmates, had to go through so many layers of approval, and only placements with “homosexuals” had to be personally approved by the director.

An earlier form of this policy “exception” was first adopted by Todd Reckling when he was director in June 2010, expressed in a letter to two gay men, Todd Vesely and Joel Busch, who had begun the process of qualifying to be foster and adoptive parents in 2008, completing the training program. Reckling wrote them that the division’s policy was to bar licensing unrelated adults living together, referring to Memo 1-95, but that the division’s policy “allows for an exception” under which one member of an unmarried couple might be licensed, but Reckling’s letter “gave no indication that such an exception would be made in their case” because, as Reckling explained, “second parent adoptions” were not permitted in Nebraska involving unmarried couples, and Todd and Joel could not marry because of Nebraska’s anti-gay marriage constitutional amendment.   Neither would their marriage be recognized if contracted out of state.

One of the state’s incredible arguments was that the plaintiffs did not have standing to bring the lawsuit because none of the couples had formally applied and been turned down. This was a nonsensical argument, since it was clear that any gay couple applying had to be rejected under the formal policy posted on the website and taught to staff members.  In reviewing the deposition testimony of the various directors of the division and other staff members, as well as their internal written communications, the court uncovered the entire history of developments within the department as this issue unfolded.  When pressed about why Memo 1-95 remained for so long on the website despite insistence by some of the witnesses that it was no longer the “practice” of the division, witnesses intimated that they wanted to prevent the possibility that a formal withdrawal of the memo would provoke the state legislature to pass an explicit ban on “homosexuals” serving as foster or adoptive parents, as had happened in some other states when the issue aroused public attention.

The defense witnesses struggled to define the difference between a “policy” and a “practice,” and to argue that because the complaint filed in this case only explicitly attacked 1-95 as a “policy,” the court should not consider whether the “practice” actually followed was constitutional. Of course, since the “practice” was never formally published, it turns out that the plaintiffs did not learn of it until after filing their complaint and conducting discovery.  The court turned aside formalistic objections to extending the lawsuit to consider the “practice,” and agreed with Judge Colborn that the “practice” as variously described in depositions and internal division communications was itself discriminatory.

The defense witnesses could advance no good reason why approval of gay people to be foster or adoptive parents should require five layers of approval culminating in personal approval by the CEO, a degree of internal scrutiny that was not demanded of any other class of applicants.

The court also rejected the defendants’ argument that the case was not “ripe” for decision because nobody had been turned down under the “practice”, now that the Memo has been removed from the website. Interestingly, however, the opinion does not mention any evidence that any gay foster or adoptive parents have actually been approved.  The defendants argued that none of the plaintiffs have yet incurred the injury of formally being denied, so it was premature for the court to rule on the merits.  But the court noted plentiful U.S. Supreme Court precedents adopting the view that a denial of equal treatment was itself an injury, even if it was in the form of an official policy that had deterred individuals from applying and thus had not resulted in any formal denials.

Approving the district court’s decision to issue an injunction against the “policy” and the “practice,” Justice Wright quoted from U.S. Supreme Court opinions, that the Court had “repeatedly emphasized” that “discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”

As to the “ripeness” issue in the context of a “reverse-discrimination” attack on a governmental affirmative action contracting policy, the Supreme Court has said “that the plaintiffs seeking to prevent future deprivation of the equal opportunity to compete need only demonstrate they will ‘sometime in the relatively near future’ bid on a contracted governed by such race-based financial incentives.”

The court also rejected the state’s contention that the case was “moot” because Memo 1-95 had been removed from the website. The court noted that the Memo had not been formally withdrawn, since it was not included on a website list of withdrawn memoranda, presumably so as not to call the legislature’s attention to its withdrawal.

“If a discriminatory policy is openly declared,” wrote Wright, “then it is unnecessary for a plaintiff to demonstrate it is followed in order to obtain injunctive or declaratory relief. We thus find immaterial any dispute in the record as to whether the Pristow Procedure was a policy versus a practice, whether it ‘replaced’ Memo 1-95, or the level of confusion within DHHS and its contractors concerning DHHS’ policy and practice when this action was filed.  A secret change in policy or procedure cannot moot an action based on a published policy statement that has been cited by the agency as excluding the plaintiffs from eligibility.”

Furthermore, the court said that a party cannot “moot” a case “simply by ending its unlawful conduct once sued,” because if such “voluntary cessation” rendered the case “moot”, causing its dismissal, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

In the final section of his opinion, Justice Wright’s discussion intimated what this appeal is really all about. The state is not actually contesting Judge Colborn’s conclusion that the policy or practice is unconstitutional.  Rather, hoping to get the case dismissed as moot, the state wants to be in a position to argue that it should not have to pay court costs and attorney’s fees to the plaintiffs!  They argued that the trial court abused its discretion in awarding costs and fees, and should have declared the case moot and dismissed it when the state removed 1-95 from its website.  The court wasn’t falling for this sophistry, however.

The April 7 opinion is a total rejection of all the arguments the state raised on appeal, and a total endorsement of Judge Colborn’s summary judgment order of August 5, 2015, which ordered the defendants to “refrain from adopting or applying policies, procedures, or review processes that treat gay and lesbian individuals and couples differently from similarly situated heterosexual individuals and couples when evaluating foster care or adoption applications under the ‘best interests of the child’ standard set forth in DHHS’ regulations.” The district court issued an order on December 15, 2015, awarding $28,849.25 in costs and $145,111.30 in attorney fees.

Lead attorneys for the plaintiffs are Amy Miller of the ACLU of Nebraska, Leslie Cooper of the national ACLU’s LGBT Rights Project, and cooperating attorneys Garrard R. Beeney and W. Rudolph Kleysteuber of Sullivan & Cromwell LLP. Amicus briefs in support of plaintiffs were filed by Nebraska Appleseed Center for Law in the Public Interest and the Child Welfare League of America.

NY Family Court Uses Judicial Estoppel In Lesbian Co-Parent Custody Case

Posted on: May 15th, 2013 by Art Leonard No Comments

Suffolk County, N.Y., Family Court Judge Theresa Whelan used the doctrine of judicial estoppel to find that a lesbian mother who had previously acknowledged her former partner’s parental status when seeking a support order from the court, was precluded from denying the partner’s parental status in opposition to a custody/visitation petition.  Judge Whelan’s April 2, 2013, ruling was published in the New York Law Journal on May 10.

The parties, identified as Estrellita A. and Jennifer D., registered as domestic partners in 2007.  They decided to have a child and chose a sperm donor through North Shore University Hospital.  Jennifer became pregnant through donor insemination and their child was born on November 23, 2008.  Because of the donor conception, no father was identified on the birth certificate, and Jennifer was identified as the sole parent. Although the women had discussed having Estrellita adopt their daughter, no adoption petition was filed.  In September 2012, the women stopped living toether, and on October 24, 2012, Jennifer filed a petition with the Family Court seeking child support payments from Estrellita. 

Jennifer’s petition stated that she and Estrellita had a child in common, and asked the court to rule upon whether Estrellita should be delcared a parent for purposes of establishing a child support order.  After a hearing, the court found that Estrellita was a parent to the child and charged her with a duty to pay child support.  Judge Whelan issued that order on January 16, 2013.  Meanwhile, Estrellita filed her own petition on January 10, seeking custody of the child.  In her petition, Estrellita contended that it would be in the child’s best interest that she have custody as “she is better suited to foster a relationship between the child and her biological mother,” according to Judge Whelan’s summary of the petition.  After  Judge Whelan’s support order was issued, Estrellita amended her petition to refer to the finding that she is a parent of the child.  On January 30, Jennifer filed a motion to dismiss the Custod/Visitation Petition, arguing that as a matter of New York child custody law, Estrellita is a “legal stranger” under Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), and thus lacks standing to seek custody.

In the Alison D. case, the New York Court of Appeals construed the domestic relations law to limit the right to seek custody or visitation to a person who is either a biological or adoptive parent of a child.  This, the court asserted, would meet the intent of the legislature that adopted the statute.  Reflecting this case law, Judge Whelan wrote, “In the realm of same-sex parents, the Court of Appeals has consistently ruled that absent an adoption, the non-biological partner is not a parent under Domestic Relations Law Sec. 70,” the provision authoring custody/visitation petitions. 

Jennifer argued that under this case law, Estrellita as precluded from seeking custody or visitation.  “If the facts present here were the same as in the cases cited by respondent,” wrote the judge, “the Court would agree.  Of course, the Family Court is mandated to apply the rulings of the Court of Appeals.  However, respondent omits critical facts from her argument and it is these facts that defeat her argument.  Respondent, in her own child support petition alleges that she and the petitioner herein have ‘a child in common’.  Further she requested and received an estoppel hearing.  At that hearing respondent testified, among other things, that petitioner not only performed as a parernt, she was in fact a parent.  The court relying on this testimony issued an order adjudicating petititoner to be a parent and referred the matter to the support magistrate for the entry of an appropriate child support order.  Now, in a complete reversal, and in an effort to preclude petitioner from having her day in court, respondent now claims that petitioner has no standing to bring a custody/visitation proceeding because petitioner is not a parent.  Colloquially, this is known as ‘having your cake and easting it too.’  Judicially, it is referred to as ‘inconsistent positions’ which this court will not countenance.”

Judge Whelan pointed out that a court can resort to the doctrine of judicial estoppel to prevent a party from taking such an inconsistent position.  “Having petitioned this court to recognize the petitioner herein as a parent, having testified that petitioner is in fact a parent and having prevailed in that matter, the respondent is judicially estopped in this custody/visitation proceeding from asserting that petitioner is not a parent.”  Judge Whelan observed that this basis of decision was distinct from “equitable estoppel,” which the Court of Appeals had ruled out in the Alison D. case as a basis for finding custody standing, since the ruling was based on Jennifer’s own prior conduct in court proceedings basically asserting the fact of Estrellita’s parenthood, under oath, in order to get the support order.

Taking note of case law supporting the “important liberty interest of the biological parent to exercise control over who associates with their child,” Judge Whelan concluded: “This biological parent deliberately sought to involve her former partner in her child’s life at least until her financial majority.”

Interestingly, Judge Whelan did not mention the parties’ domestic partnership in support of her decision.  Perhaps this is because domestic partnership in New York is a creature of local law (county or municipal) and so cannot create rights under state law.  Had Estrellita and Jennifer been legally married when their child was born, the result would be different.   Indeed, the Court of Appeals has even recognized an out-of-state civil union as being relevant to an individual’s standing to petition for custody of a child born after the civil union was contracted.  And, under the New York Marriage Equality Law enacted in 2011, of course, a child born to a married woman will be presumptively the legal child of her same-sex spouse.

This, of course, is not a ruling on the merits of the Custody/Visitation petition, but merely a ruling that Estrellita may proceed to a hearing on the merits in her attempt to prove that it would serve the best interest of the child to award custody to her.  Estrellita is represented by the firm of Gervase & Mintz, Garden City.  Jennifer is represented by Margaret Schaefler, Central Islip.  Attorney appointed to represent the interest of the child is Jennifer Marin, Legal Aid Society of Suffolk, Central Islip.    Ms. Marin had argued to the court an alternative theory for allowing Estrellita to petition: the “extraordinary circumstances” doctrine under which a court will a “legal stranger” to seek custody.  However, this constellation of facts has become too common — and is too much like the facts in Alison D. — to be a convincing instance of “extraordinary circumstances,” at least in the view of Judge Whelan.