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Manhattan Court Finds Former Same-Sex Partner of Adoptive Mother Lacks Standing to Contest Custody of the Child

Posted on: April 24th, 2017 by Art Leonard No Comments

Manhattan State Supreme Court Justice Frank P. Nervo ruled on April 11 that the former same-sex partner of a woman who adopted a child from Africa after the women’s relationship had ended could not maintain a lawsuit seeking custody and visitation with the child based on the relationship that she developed with the child after the adoption took place.  K. v. C., 2017 WL 1356080, 2017 NY Misc LEXIS 1624 (N.Y. Sup. Ct., N.Y. Co.).  In one of the first applications of the New York Court of Appeals’ historic August 2016 ruling in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, Justice Nervo found that plaintiff Kelly Gunn had failed to show by “clear and convincing evidence” that she and her former partner, Circe Hamilton, had agreed to adopt and raise the child together, which would have brought the case within the conceptual sphere, if not the precise holding, of the Court of Appeals’ recent precedent. Gunn has announced that she will appeal the ruling to the Appellate Division, First Department, in Manhattan, and seek an extension of the twenty-day stay that Justice Nervo put on his ruling.

Justice Nervo’s application of the recent precedent was complicated by the limitations of that prior ruling.  In that case, which was a consolidation of two separate cases, both cases involved donor insemination situations where the former partners had planned for and carried out the birth of a child within the context of their relationship, with an explicit mutual agreement that they would both be parents of the child, followed by years of living together with the child before the women separated.  This new case posed different facts.

In its Brooke S.B. ruling, written by the late Judge Sheila Abdus-Salaam, the Court of Appeals had cautiously abandoned its prior bright line test, under which a biologically-unrelated same-sex co-parent was treated as a legal stranger without standing to seek custody or visitation, making an exception for situations where a parental relationship was created by mutual consent within the context of donor insemination.  “Because we necessarily decide these cases based on the facts presented to us,” wrote Judge Abdus-Salaam in that case, “it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement.  Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody.”

Judge Nervo’s opinion referred to the parties by first initials, but press reporting after his opinion was released included their names.

Gunn and Hamilton “were in a relationship from 2007 to 2009, entering into a cohabitation agreement on May 18, 2007,” wrote the judge.  “It is undisputed that during their relationship, they entered into a plan to adopt and raise a child together.  It is also undisputed that the parties’ relationship deteriorated over time and they entered into a separation agreement on May 28, 2010.”

About ten months later, Hamilton learned that a child was available for adoption in Ethiopia and began to take the steps to complete the adoption.  Gunn claims that despite their separation, she facilitated the adoption through a substantial monetary payment as part of their separation agreement, which made it possible for Hamilton to “establish a home sufficient to pass inspection by the adoption agency.”  She also arranged a business trip to be able to travel with Hamilton and the child, Abush, on the London-to-New York part of Hamilton’s trip home with the child after obtaining custody of him in Ethiopia.  Gunn also presented evidence of her continuing involvement with the child after the return to New York, although Gunn conceded that “her involvement with the child was limited because [Hamilton] would disapprove.”

On the other hand, Hamilton argued that the couples’ plan to adopt a child and raise the child together “dissolved contemporaneously with the dissolution of the parties’ relationship.”  She argued that Gunn’s involvement after Hamilton adopted the child was “only a supportive role as a close friend” of Hamilton and the child.  She contended that Gunn was “merely a godmother,” not a parent.  She also argued that she did not “encourage, facilitate or condone a parental relationship” between Gunn and the boy, who is now seven years old.

Thus, this case did not precisely map the factual contours approved by the Court of Appeals in the Brooke S.B. case.  In attempting to adapt that ruling and apply it to these facts, Judge Nervo interpreted the earlier case to extend to an adoption situation, but only if the plaintiff could show, by clear and convincing evidence, that the parties had planned to adopt the child and raise it together and carried out their plan within the context of their continuing relationship.  While these parties had such a plan prior to their separation, he found, in order to meet this test, the plan had to have continued through the adoption process and the raising of the child, which he held did not occur in this case.

The timing of Gunn’s lawsuit is interesting.  Although Hamilton adopted Abush in 2011, Gunn did not file her lawsuit until September 1, 2016, two days after the Court of Appeals decided Brooke S.B.  Prior to that decision, of course, her suit would have been blocked by the precedent that the Court of Appeals overruled, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991).  In an April 20 article about the case, the New York Times reported that Gunn went to court “to prevent her former partner . . . from moving to her native London” with the child.  Gunn sought immediate relief when filing her complaint, which first went to Justice Matthew F. Cooper, who issued an interim order restraining Hamilton from relocating Abush to London while the case was pending.  The matter was then assigned to Justice Nervo, who scheduled a hearing to begin just a week later, on September 8.  The hearing continued sporadically until February 16, 2017. Hamilton had responded to the complaint on September 6 with a motion to dismiss the case.  Gunn finished presenting her witnesses on November 23.  After evaluating Gunn’s evidence, Judge Nervo denied Hamilton’s motion to dismiss, finding that Gunn’s evidence, as yet uncontradicted, had established what lawyers call a prima facie case, a basis for concluding that she had a potential claim to parental standing.

However, after hearing Hamilton’s evidence, which ended on February 16, Justice Nervo concluded the factual and legal issues against Gunn, granted Hamilton’s motion to dismiss, denied Gunn’s motion and vacated the interim orders that had been issued by Justice Cooper. He also dissolved interim orders that had enabled Gunn to continue seeing the child while the case was ongoing.  However, recognizing that Gunn would likely appeal and could have grounds to argue that the Court of Appeals’ precedent should be given a broader reading, Nervo stayed his order for twenty days.  A prompt appeal and petition to the Appellate Division to preserve the interim relief might preserve the status quo while an appeal is considered.

Justice Nervo’s opinion includes a lengthy summary of the testimony presented by both parties, which led the judge to conclude that Gunn had fallen short of showing by clear and convincing evidence that she had a parental relationship with the child based on a mutual agreement with Hamilton.  “Upon the presentation of the evidence of both parties over 36 days of testimony, constituting a hearing transcript of 4,738 pages, 215 exhibits on behalf of petitioner and 126 exhibits on behalf of respondent, the court finds the petitioner has on numerous occasions stated that she did not want to be a parent and gave no indication to either respondent or third parties that she either wanted this role or acted as a parent,” wrote Nervo.  “Therefore, she has failed to establish by clear and convincing evidence that she has standing as a parent under Domestic Relations Law Section 70, as established In the Matter of Brooke S.B. v. Elizabeth A.C.C.”

The court never addressed the best interest of the child, usually a key finding in a custody dispute, because in order to put that issue into play, a plaintiff has first to establish her status as a parent or, under New York cases, show extraordinary circumstances in order to invoke the court’s authority to require a biological or adoptive parent to engage in a contest about the best interest of her child.  Part of Gunn’s argument on appeal will likely be that Brooke S.B. has implicitly overruled the extraordinary circumstances requirement in cases involving same-sex partners who had jointly planned to raise a child together, even if the case does not involve donor insemination or a continuous relationship of the women prior to the adoption.

Reading through Judge Nervo’s summary of the evidence, which is unlikely to be upset on appeal, as appellate courts generally refrain from second-guessing the factual findings of trial judges in custody and visitation cases unless there is an appearance of substantial bias against a party or failure to account for significant evidence in the hearing record, it sounds like he concluded that although Gunn had formed a relationship with Abush and there were some indications that it was deeper than a mere acquaintanceship or babysitter kind of relationship, on the other hand there was significant evidence that Gunn had expressed reservations during her relationship with Hamilton about the adoption plans and had never directly communicated to Hamilton after the adoption that she desired to take on the responsibility of being a co-parent of the child.  Since the Court of Appeals emphasized in its decision that standing would arise from a mutual agreement between the child’s biological or adoptive parent and her same-sex partner, and there was no sign of such an agreement at or after the time of this adoption, the case could not be made to fit precisely into the Court of Appeals precedent.

On the other hand, it may be open to the Appellate Division to take a different view, especially since the Court of Appeals disclaimed making a ruling on factual situations different from those in the cases it was deciding.  Clearly, the Court of Appeals rejected the bright line test of the old Alison D. v. Virginia M. case.  Whether it will countenance a broader exception to the standing rules than it carved out in Brooke S.B. is uncertain.

Gunn’s attorney, Nancy Chemtob, told the New York Times, “I believe that this decision doesn’t follow Brooke.”  The Times reported that “Bonnie Rabin, one of Ms. Hamilton’s lawyers, said the ruling should allay concerns that a trusted caretaker could suddenly claim parental rights under the state’s expanded definition of parentage.  ‘That would be scary to parents,’ she said.”

 

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.

Michigan may be the next state to defend its ban on same-sex marriage in a federal court trial.

Posted on: July 2nd, 2013 by Art Leonard No Comments

Senior U.S. District Judge Bernard A. Friedman, appointed to the court by President Ronald Reagan in 1988, ruled on July 1 that a Michigan lesbian couple is entitled to a trial of their claim that the state adoption law, forbidding same-sex couples to jointly adopt children, and the Michigan Marriage Amendment (MMA), forbidding same-sex marriages, violate their rights under the 14th Amendment.  Rejecting the state’s motion to dismiss the case, Judge Friedman cited the Supreme Court’s June 26 decision striking down Section 3 of the Defense of Marriage Act, U.S. v. Windsor, to support the “plausibility” of the couple’s constitutional claim.

April DeBoer and Jayne Rowse, the plaintiffs, are both employed as nurses and have lived together for six years.  Between them, they have adopted three children as single parents.  They would like to jointly adopt the three children to solidify their family relationship, but Michigan’s adoption law forbids it because they are not married, and the Michigan Marriage Amendment denies them the right to marry.

They filed suit in federal court, claiming that the state’s prohibition on joint adoptions by same-sex couples violates their equal protection rights.  In pre-trial arguments, Judge Friedman suggested that their challenge would not be complete if it was confined to the adoption law, and they amended their complaint at his suggestion to add a claim that the state’s ban on same-sex marriage violates their rights as well. 

The state moved to dismiss, arguing that the plaintiffs cannot show that the Michigan Marriage Amendment lacks a rational relationship to a legitimate state interest, and that there is no fundamental right under the constitution for same-sex couples to marry.

Friedman denied the motion, holding that the claims cannot be decided as a matter of law at this point, largely because of the Supreme Court’s DOMA decision.

On the one hand, he observed, there is language in that decision that defendants will cite, about the state’s “historic and essential authority to define the marital relation” (quoting from Justice Kennedy’s opinion).  “They will couch the popular referendum that resulted in the passage of the MMA as ‘a proper exercise of [the state’s] sovereign authority within our federal system, all in the way that the Framers of the Constitution intended,” he wrote, again quoting from Kennedy’s opinion.

On the other hand, of course, he asserted that “plaintiffs are prepared to claim Windsor as their own; their briefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, Lawrence v. Texas, and now Windsor.  And why shouldn’t they?  The Supreme Court has just invalidated a federal statute on equal protection grounds because it ‘place[d] same-sex couples in an unstable position of being in a second-tier marriage.’  Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of ‘tens of thousands of children now being raised by same-sex couples’ as well.  This is exactly the type of harm plaintiffs seek to remedy in this case.”

The court’s role in deciding a motion to dismiss is to decide whether the plaintiffs have asserted a plausible legal claim, assuming their factual allegations to be true.  “Construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court’s current statement of the law, this Court cannot say that plaintiffs’ claims for relief are without plausibility,” Friedman concluded as to the equal protection claim.  He commented that the plaintiffs’ due process claim “will likewise move forward because it states a plausible claim for relief,” citing Judge Vaughn Walker’s original Proposition 8 decision, which now stands as an unappealed district court opinion.

Friedman ordered that counsel meet with him on July 10 to set a trial date.  From the tone of his opinion, he is eager to decide this case on the merits, and seems well disposed towards the plaintiffs’ claims.