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Adoption process complicated by disparity between state law and Supreme Court ruling on gay marriage

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At least one Arizona judge claims courts can’t certify same-sex married couples to jointly adopt, as long as state law grants that right only to a husband and wife.

Judge Corey Sanders, the presiding judge in Graham County Juvenile Court, argued that although the U.S. Supreme Court has ruled the Constitution protects the rights of same-sex couples to marry, the state law regarding adoption does not conform to the new standard set by the court of what defines a married couple.

“If you read the statute exactly correctly, exactly as it says, it says it has to be by a husband and a wife. It doesn’t say by a married couple. That’s been the approach that the county attorney has taken, and that we’ve taken,” Sanders said.

Sanders said his court will allow adoptions for single gay people, “but until we have a clarification that (the law) means any legally married couple, we feel that the statute stops us from doing that.”

Adoption cases are primarily handled in the state’s juvenile courts. And joint adoptions provide legal protections not afforded to same-sex couples forced into situations where only one parent is the adoptive mother or father. If, for instance, a parent in a same-sex marriage becomes terminally ill, the fate of the child is put in jeopardy if the surviving parent is not the adoptive mother or father.

Rep. Kate Brophy McGee said there are “enormous legal ramifications” in situations where only one of two parents has parental rights over an adopted child.

“There are many, many ramifications, and I understand the reluctance to address this, but it’s something I believe we must do for these children,” the Phoenix Republican said.

Other county courts have certified joint adoptions for same-sex married couples, though in many Arizona counties, it’s unknown if such petitions have been handled, and if so, how they were handled, according to data provided by the Arizona Supreme Court.

Gila, Maricopa, Navajo, Pima, Pinal and Yavapai county court officials all reported having certified at least one joint adoption petition for a same-sex couple.

Judge Colleen McNally, the presiding juvenile court judge in Maricopa County, said her court doesn’t take a stance on how judges should rule in light of the U.S. Supreme Court’s 2015 decision legalizing gay marriage, and it’s up to each judge individually to make their own ruling.

Essentially, consistent rulings are impossible to guarantee while there’s ambiguity between case law and state statute.

“(A judge’s) obligation is to make their independent determinations,” McNally said. “I do think when there’s ambiguity – the statute clearly has a statement about a husband and wife are the ones who may jointly adopt – I think there is a possibility it’s going to be interpreted differently, about what a judge should do.”

Brophy McGee said she’s considering an amendment to clean up the language in adoption statutes and conform state law to the Supreme Court ruling. And she also hopes to eliminate a preference for adoption for married couples over single parents – a section of law that some elected officials and a powerful Christian lobbying group have clung to in the wake of the legalization of same-sex marriage on a national level.

Their argument mirrors the one made by Sanders in his interpretation of the law — the Supreme Court’s ruling applies only to marriage, and has no bearing on how Arizona handles adoption.

“It didn’t address anything that had to do with adoption,” he said. “That’s why I really do think, to be on really safe legal ground, it’s better to have the statute amended.”

Sanders said he was surprised there was a contentious debate at the Capitol over the need to amend law to reflect the Supreme Court’s decision, and thought “it would be pretty much a given that we’re going to need to make some changes.”

Yet elected officials like Maricopa County Attorney Bill Montgomery have refused to handle adoptions in accordance with the court’s ruling. In July 2015, Montgomery announced he was outsourcing all adoption services to avoid providing counsel to same-sex couples seeking the county attorney’s help.

Montgomery stated at the time he still opposes providing the service, and argued there’s no case law or statute requiring him to do so, but said he would not oppose it if attorneys contracted by his office provided legal help to same-sex couples.

 ADOPTIONS LAW “STILL ENFORCEABLE”

The Center for Arizona Policy has opposed efforts this legislative session by Democrats to amend adoption statute that gives preference for married heterosexual couples in adoption cases. Center for Arizona Policy attorney Josh Kredit has argued that the legalization of same-sex marriage in Arizona doesn’t alter the validity of the adoption law, which his group pushed for.

“Yes, it is still enforceable,” Kredit said, adding that he doesn’t think same-sex couples could claim the preference under the law either, since it specifically prefers to give a child to a married “man and woman.”

The Center for Arizona Policy authored the constitutional change Arizona voters approved in 2008 banning same-sex marriage in Arizona.

Cathi Herrod, president of the Center for Arizona Policy, insisted that the U.S. Supreme Court’s decision to allow same-sex marriages throughout the country doesn’t extend to adoption laws.

“All the Supreme Court did was state that two men or two women may legally be married in every state in this country. The Supreme Court decision did not redefine adoption law,” Herrod said, adding that the court’s opinion also did not touch on any other aspect of law, other than who may marry.

She maintained that Arizona law still only allows heterosexual married couples to adopt, and for that to change requires another court decision or legislative action.

“Neither has happened,” she said.

GOP lawmakers on March 14 defeated an amendment to SB1102, sponsored by Rep. Rebecca Rios, D-Phoenix, to update the adoption preference statute, but the debate, which focused almost exclusively on how the Department of Child Safety has handled adoptions since same-sex marriage first became legal in Arizona in November 2014, sparked Brophy McGee’s inquiry into how the courts are handling those cases.

In April 2015, Gov. Doug Ducey ordered the Department of Child Safety to afford the same right to jointly foster or adopt to married same-sex couples as the state affords heterosexual couples. The order came after the Arizona Capitol Times reported that the agency had quietly ceased allowing same-sex couples joint foster and adoption rights in February 2015.

Following the Supreme Court’s decision later that year, Ducey issued another statement urging all Arizonans to “comply with the requirements of the law based on this ruling.”

Ducey spokesman Daniel Scarpinato said it’s unnecessary for lawmakers to change state law from “husband and wife” to “married couple.”

“The Supreme Court has made the order. We are following the law. The statute as written is unenforceable in light of the court’s ruling,” he said.

But the governor’s statements cannot compel judges to rule a certain way.

 BEST INTEREST OF THE CHILD

Brophy McGee said she’s exploring her own floor amendment with Rios to, at the least, eliminate any language in state adoption law that deals with a preference for a married couple of any sexual orientation over anyone else. Sen. Adam Driggs, R-Phoenix, confirmed he has agreed to allow Brophy McGee to seek an amendment to one of two adoption-related bills he has sponsored that are ready for a vote on the House floor.

Brophy McGee said her amendment may also change the “husband and wife” language that Rios sought to amend.  By having a Republican sponsor such an amendment on the floor, it is likely to have a better chance of being debated and adopted, she said.

“It would be my preference to eliminate preference altogether, and have it simply be in the best interest of the child. There are loving homes and loving families who are not husband and wife. The statutes do not reflect that,” Brophy McGee said.

The result, she said, is that the law “creates an uncertainty out in the community as to whether or not they would be able to adopt and parent these children.”

“It breaks my heart,” she added.

Brophy McGee’s amendment would likely face stiff opposition from her GOP colleagues, who argued during the March 14 committee hearing on SB1102 in favor of what Sen. Nancy Barto, R-Phoenix, called a “soft preference” for heterosexual couples.

“Equality isn’t our goal. Best interest of the child is our goal,” Barto said, citing a frequent conservative talking point that a child is better raised in the care of a mother and father than two mothers or two fathers.

Rep. John Allen, R-Scottsdale, argued that there are enough children in the state’s care that any couple will eventually get to adopt, even if a same-sex couple might have to wait a little longer.

There are roughly 19,000 children in the state’s care, according to DCS spokesman Dough Nick. Of those, about 4,000 have a case plan for adoption.

“This will not shorten any line in any way,” Allen said. “If you are on the line for a child, you’re eventually going to get one… At this point, this is moot. We have far more children than we can place, so we place them anywhere we can.”

Allen also noted that his own personal views come into play.

“I personally don’t think that they’re equal, but that’s my preference. I’d like to keep the law the way it is,” he said.

 “SOFT DISCRIMINATION”

Brophy McGee said the “soft preference” of which Barto and other Republicans spoke is “really a form of soft discrimination.”

“These are recognized as families by the courts, and in this state they can marry, they can adopt children. This has made it very difficult for them to do that with the way that the law is expressed,” Brophy McGee said.

If the Legislature doesn’t pass a bill to conform the language, and a judge were to deny a petition for joint adoption by a same-sex couple based on current state statute, the law would likely be fixed in court, according to Jennifer Pizer, an attorney for Lambda Legal, a national gay-rights organization.

The arguments made before judges in opposition to the legalization of same-sex marriage are the same arguments that would be made to oppose the rights of same-sex married couples to adopt, Pizer said. And just as those arguments failed to convince the courts to deny marriage to same-sex couples, they would likely fail to convince judges to deny adoption rights, she said.

“We’ve heard it all before again and again and again in the marriage cases. There’s nothing really new to be said,” Pizer said.

Pizer said she agrees with the Governor’s Office’s assertion that the Supreme Court’s ruling was not a narrow one. As a result, the “husband and wife” language in state statute is unenforceable, as is any interpretation of state law to give heterosexual couples a preference over same-sex couples when it comes to adoption, she said.

“Certainly if a case of this sort arises, Lambda Legal is standing by,” she said. “These are rights that everybody’s entitled to, regardless of their sexual orientation.”

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