When the State Discriminates
BY Carlos A. Ball
September 27 2012 4:00 AM ET
Lee Balser, a psychological counselor, first met a 4-year-old boy by the name of Charlie when the Licking County (Ohio) Department of Human Services in 1986 referred the child to his office. Up to that point, the little boy had had a difficult life. The previous year, his biological parents had voluntarily transferred custody of him and his two sisters to the county because they were unable to care for the children. In addition, Charlie had been diagnosed with leukemia, though the disease was then in remission after lengthy radiation and chemotherapy treatments. Furthermore, Charlie had learning disabilities, a speech impediment, and facial features that suggested he suffered from fetal alcohol syndrome.
Starting in July 1986, Lee met with Charlie during weekly counseling sessions aimed at helping the child deal with issues of anger and low self-esteem in preparation for a future adoption. Although Charlie responded well to the sessions, Lee was concerned that, every few months, DHS moved the boy from one foster home to another. It did not take an expert to see that what Charlie needed most was a stable home life, something that the foster care system seemed incapable of providing. It was then that Lee — who was becoming quite attached to the boy — started considering the possibility of adopting him.
Even though DHS had placed Charlie in its adoption registry shortly after his biological parents gave up custody of him the year before, no one had stepped forward expressing interest in adopting him. When Lee first started thinking about the possibility of doing so, he discussed the matter with his partner Tom Kuzma, a research scientist with a Ph.D. in Astronomy, with whom he shared a home in Columbus. At first, Tom was unsure about whether he wanted to help raise a child. But after many conversations with Lee and after Tom started spending time with Charlie — in February 1987, DHS agreed that Charlie could visit regularly with the gay couple — he came to support the idea of Lee adopting the boy.
A few weeks later, Lee informally let officials at DHS know that he would be interested in adopting Charlie and suggested that the agency conduct a study of his home. Rather than doing so, DHS became more proactive in trying to find a permanent (heterosexual) home for the boy. In May 1987, it located a married, heterosexual couple who expressed interest in adopting Charlie. But after the agency began taking steps to place Charlie with them, the couple changed their mind and decided not to go through with the adoption.
In the meantime, DHS moved Charlie yet again to a new foster home after he had difficulties in the home of a foster mother — who had fostered more than 200 children for the county through the years — because her rigid parenting style did not mesh well with Charlie’s behavioral problems. Knowing that he could provide the loving and stable home that the boy so desperately needed, and tired of waiting around for the agency, Lee in January 1988 filed a court petition seeking to adopt Charlie.
Since DHS had legal custody of the boy, it had to consent to the adoption. Every week following the filing of his petition, Lee called the agency to inquire whether it would provide its consent. And every week he was told that the matter was under advisement. Three months later, and only one day before the scheduled court hearing on Lee’s adoption petition, the agency’s executive director announced that it would oppose the adoption.
At the hearing, two psychologists testified on Lee’s behalf. The first told the court that sexual orientation was irrelevant to the question of whether someone could be a good parent. The second testified that Lee and Charlie had developed a tight bond and that given Charlie’s medical and emotional issues, he needed the stability, care, and love that Lee was willing and able to provide. After stating that Lee would be a good parent and that he could handle Charlie’s behavioral problems, the expert witness added that “my concern isn’t so much that Mr. Balser gets Charlie, but that Charlie gets Mr. Balser.” In addition, the guardian at litem assigned to represent Charlie recommended that Lee’s adoption petition be granted.
The government’s only witness was a DHS administrator who told the court that the agency had developed a profile of the type of family that it believed would be best suited to adopt Charlie, one that consisted of two parents who had prior parenting experience, a proven ability to deal with behavioral issues, and “a child-centered lifestyle.” The agency’s position was that Lee did not meet most of its criteria. For example, the DHS administrator told the court that Lee did not lead “a child-centered lifestyle” because he had been a single man — his five-year relationship with Tom apparently did not count — all of his adult life. She also expressed concern that “society’s view of a homosexual family may make it difficult for homosexual parents to access and receive” the type of medical and educational services that a special needs child like Charlie required. Finally, the witness testified that the agency had contacted other child welfare agencies in Ohio and elsewhere, only to learn that none of them had ever approved an adoption by an openly gay person.
It was not clear how the judge was going to rule on the adoption petition, especially after he asked Lee at one point whether “if you adopt Charlie, are you going to turn him into a homosexual?” (Lee answered that the boy’s sexual orientation would be something for him to figure out on his own when he grew older.) But several weeks after the hearing, the judge issued an order approving Lee’s adoption petition. The government immediately appealed and successfully got a stay of the trial court’s ruling.