When the State Discriminates
BY Carlos A. Ball
September 27 2012 4:00 AM ET
The Lofton-Croteau family
By the time the Court of Appeals issued its ruling in Bruce Moffit and Mark Dalton’s case in 1995, the highest courts of Massachusetts and Vermont had already authorized second-parent adoptions. But some courts had refused to do so. The year before, the Wisconsin Supreme Court had held that a same-sex couple could not adopt the same child. That court reasoned that since the legislature had explicitly created only one exception, that of stepparents, to the requirement that the rights of all legal parents be terminated before an adoption petition could be approved, it must have intended for that exception to be exclusive of all others. As a result, the lesbian partner of a legal parent was not allowed to adopt the latter’s child even though everyone involved with the case, including the trial judge and the supreme court justices, recognized that the adoption would have been in her best interests.
But most appellate courts that have since grappled with the issue of second-parent adoptions have approved them. And in two states (Colorado and Connecticut) in which appellate courts refused to recognize second-parent adoptions, the legislatures later enacted statutes explicitly doing so. This means that, as of 2011, appellate court rulings prohibiting second-parent adoptions stand in only three states (Ohio, Nebraska, and Wisconsin).
While some legislatures have enacted statutes explicitly allowing second-parent adoptions, others have passed laws prohibiting them. Mississippi, for example, has a law that prohibits same-sex couples from adopting. And Utah has a statute in the books that prohibits cohabiting couples from adopting jointly. But the most infamous gay adoption ban is the one whose history we explored earlier in this chapter, that of Florida’s.
When a state social worker asked Steven Lofton and Roger Croteau in 1988 to serve as foster parents for an eight-month old baby boy by the name of Frank, they were at first unsure what to do. The reason for the gay couple’s uncertainty was not that the child had tested positive for the HIV antibodies; both men were pediatric nurses at a Miami hospital — Roger worked in the hospital’s pediatric AIDS unit — so it was not the boy’s medical condition that gave them pause. It was just that the two gay men in their early thirties had never envisioned themselves as parents. What in the end convinced them to take Frank into their home was his mother’s personal request that they do so as she lay dying in a hospital bed of AIDS-related complications.
In the months after Steven completed the necessary foster care training and received his license, the state placed not only Frank in Steven and Roger’s home, but also two other HIV-positive children — Ginger, a six-month-old who was in relatively good health, and Tracy, a 1-year-old who barely weighed 12 pounds, could not hold a formula bottle in her hands, had been hospitalized a dozen times, and suffered from such a severe sinus condition that the men — for more than two years — had to suction her several times a night to keep her breathing while she slept.
Because of the challenges that came with caring for HIV-positive children, the state insisted that Steven quit his job so that he could be with the children all day. Roger continued working as a pediatric nurse while also helping with the childcare at home. As the two gay men settled into raising the three children that the state placed in their care, they committed themselves to providing them with as much love as they could muster while aggressively pursuing every medical option available to keep them as healthy as possible at a time when most children with AIDS did not live past the age of 2 or 3.
All three children placed by the state in Steven and Roger’s home were African American, while the two gay men were white. Children from racial minority groups are overrepresented in the country’s child welfare system, and Florida’s is no exception. It is therefore not unusual for state agencies to place minority children with white foster parents, including lesbians and gay men.
There are not many individuals who would volunteer to raise three young children with serious medical issues, but Steven and Roger carried out their parental responsibilities with a sensitivity and an aplomb that left even the most jaded social workers amazed. Eventually, the state child welfare agency that placed the children in their home created an “outstanding foster parent of the year” award, named it the “Lofton-Croteau Award,” and gave the first one to Steven and Roger.
In July 1991, Steven got a call from a social worker asking him to accompany her to a private hospital to help her assess the needs of a biracial nine-week-old infant. The boy, whose name was Bert, had tested HIV-positive at birth and had been placed in a shelter home after his substance-abusing mother refused to care for him. A few weeks later, the state placed him in a foster home, but caring for the sick baby proved to be too much for the foster parents. Feeling desperate and not knowing what else to do, the couple had dropped the child off at the private hospital.
When Steven and the social worker arrived at the hospital, they were told that Bert was in an isolation unit and was being visited only by staff wearing masks, gowns, and latex gloves. The two visitors, however, refused to put on the protective gear and instead took turns holding the baby in their arms, sensing that the child needed direct contact with human skin.
As they were evaluating Bert’s condition, a nurse walked into the room and said that the baby was ready to go. The perplexed visitors explained that they were there to assess the child’s needs rather than to take him with them, but the nurse insisted that the boy could not remain in the hospital.
Not knowing what else to do, Steven ended up taking Bert home that night. The following day, the social worker called and suggested that Steven and Roger add the baby to their brood of foster children. After having Bert home for only a few hours, the couple was already smitten with love for him, and they quickly agreed to care for the boy as well.
A few months later, Steven and Roger enrolled all four of their foster children in a medical study of AZT, the first government-approved AIDS medication, at the National Institutes of Health (NIH). During the following four years, the family took more than two dozen week-long trips to the NIH campus in Bethesda, Maryland, where the children received comprehensive medical testing and evaluations.
Despite Steven and Roger’s best efforts, they were unable to keep all of their children alive — in 1994, Ginger died when her fragile immune system was unable to cope with a bout of measles. Although the death of their 6-year-old daughter was devastating to the couple, they were to some extent comforted by the fact that a few months before her death they had learned that Bert had seroreverted to being HIV-negative. But once that happened, according to the Florida regulations, Bert became eligible for adoption. And when Steven applied to adopt the boy, the agency denied his application because state law prohibited gay people from adopting.
After officials began taking steps to find an adoptive family for Bert — including showing up unannounced at his school to take pictures of him to show prospective parents — Steven filed a federal lawsuit, with the assistance of the ACLU, arguing that Florida’s adoption ban violated the Constitution.