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In the District Court of Appeal, Third District, State of Florida, Case No.: 3D08-3044
On December 11, 2004, John and James Doe, then ages four and four months, were removed from their home on allegations of abandonment and neglect and placed into the custody of the State of Florida. Shortly thereafter, the children were placed with Martin Gill, a licensed foster caregiver, where they have now lived for more than four years. Twenty-months after entering care, the court terminated the parental rights of John and James’s biological parents, and the children became available for adoption.
In September 2006, Mr. Gill petitioned to adopt the siblings so that he could provide them with a permanent family where they would be nurtured and well taken care of. The Center for Family and Child Enrichment (“CFCE”) performed a positive preliminary home study as to Mr. Gill’s suitability as a prospective adoptive parent. However, CFCE did not recommend, and the Department of Children and Family Services (the “Department”) subsequently denied, Mr. Gill’s application for adoption because of a Florida law banning lesbians and gay men from adopting children.
On January 18, 2007, Mr. Gill petitioned the Miami-Dade Circuit Court to adopt John and James. He also requested a judicial determination that the Department’s only ground asserted for denial of his Petition for Adoption (Fla. Stat. §63.042(3)(2008), which states, “[n]o person eligible to adopt under this statute may adopt if that person is a homosexual”) be declared unconstitutional. Mr. Gill disputed the constitutionality of the categorical exclusion on equal protection and substantive due process grounds. Through counsel, the children also alleged equal protection, due process and separation of powers claims. The Department moved to dismiss Mr. Gill’s Petition for Adoption arguing that the exclusion serves a legitimate government interest. That motion was denied. In October 2008, the Court held a four-day trial regarding the adoptions and the constitutionality of the Florida statute.
On November 25, 2008, the Court granted the adoptions of John and James Doe, finding that Fla. Stat. §63.042(3) violates Mr. Gill’s and the children’s equal protection rights guaranteed by Article I, § 2 of the Florida Constitution. The court also concluded that the statutory exclusion defeats a child’s right to permanency as provided by federal and state law pursuant to the Adoption and Safe Families Act of 1997. The Department immediately appealed the decision to Florida’s Third Circuit Court of Appeal.
On June 19, 2009, NCYL joined as amicus curiae along with children’s advocates from across the nation urging the appellate court to uphold the trial court’s decision striking down Fla. Stat. §63.042(3). Amici argued that the Florida law banning lesbians and gays from adopting harms children by denying them the opportunity to have a permanent home.
Furthermore, the law is especially harmful to Florida’s 3,500 children in foster care because it denies them the opportunity of finding a “forever family” with countless individuals who could otherwise provide them with a loving, stable home.
Counsel: Elizabeth L. Mitchell, Benjamin Brown, Katherine Halliday, Wilmer Cutler Pickering Hale and Dorr LLP; Lauri Waldman Ross & Theresa L. Girten, Ross & Girten; Joan Heifetz Hollinger, Berkeley Law School, University of California
Updated April 21, 2010
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