When the State Discriminates
BY Carlos A. Ball
September 27 2012 3:00 AM ET
Michael Galluccio and Jon Holden
Although everyone involved in assessing Lee Balser’s adoption petition, from the trial judge to the county welfare officials, knew his partner would play an important (even parental) role in Charlie’s life, Tom did not join Lee’s petition. That Tom did not also seek to legally adopt the boy was hardly surprising; it was difficult enough, in the 1980s, to get courts to approve an adoption petition brought by an openly gay man; to add his same-sex partner to the petition diminished the likelihood of approval even more because the issuance of the adoption decree might be perceived as a form of judicial condoning of the same-sex relationship.
Joint adoptions by lesbian and gay couples were rare before the mid-1990s. (“Joint adoptions” are those in which two individuals, neither of whom is already a legal parent of a child, become his or her parents simultaneously. Such adoptions should be distinguished from “second-parent adoptions.” In those adoptions, there is already a legal parent and the question is whether the parent’s same-sex partner can become a second parent through adoption.) But as some child welfare officials, social workers, and judges grew more comfortable with adoptions by individual lesbians and gay men, the push soon came for the recognition of joint adoptions. One of the earliest and most important joint adoption cases took place in New Jersey.
When Michael Galluccio and Jon Holden, a gay couple in their early 30s, first decided to try to become parents in 1994, they were advised by a child placement specialist with the New Jersey Division of Youth and Family Services to settle for being foster parents because state officials would never allow a same-sex couple to adopt together. Since this was not a problem for the couple — the two men were unsure whether they wanted to commit to permanent parenthood anyway — they went ahead and enrolled in the state’s foster care licensing program. During that process, in response to inquiries by officials, the couple made it clear that they would gladly accept a child with special needs.
Six months later, after they were certified as foster parents, DYFS placed a 12-week baby boy by the name of Adam in their home. The identity of the child’s father was not known. The mother was a heroin and cocaine user who was HIV-positive. Adam was born prematurely and spent the first few days of his life in the intensive care unit after testing positive for HIV antibodies. He also had respiratory problems, cardiac arrhythmia, and a hole in his heart’s left ventricle (a condition that doctors believed would heal on its own). For the first six weeks of his life, Adam was given the AIDS drug AZT with the hope that the virus would not take hold in his little body. He was also on several other medications, including one that helped him cope with the tremors and seizures caused by the withdrawal from heroin and cocaine that he experienced once he was no longer connected to his mother’s bloodstream.
Although Michael and Jon had thought, before Adam arrived in their home, that being foster parents might be enough for them, once they started caring for and bonding with the baby, they quickly decided that they wanted to keep him permanently. Concerned about what the placement specialist had told them the year before about their ineligibility for adoption, they made inquiries of Adam’s social workers and other state employees involved in overseeing his care. This time, they were assured by everyone at DYFS with whom they spoke that both men would be able to adopt Adam together.
But after they officially requested that DYFS consent to the adoption so that they could file an adoption petition in court, the agency informed them that the prior statements by its employees had been mistaken because agency policy prohibited unmarried couples from adopting jointly. State officials were willing to consent to Michael’s adoption of Adam, but not to Jon’s.
DYFS’s sudden reversal left the gay couple with an excruciatingly difficult decision to make. They could proceed with a single-parent adoption, which would provide many benefits to Adam, including making it much more difficult for state officials to remove him from his home. It would also permit Adam, who needed constant medical treatment and attention, to be added to Michael’s generous employer-provided health insurance. (As a child in the foster care system, Adam was covered by Medicaid, but as Michael and Jon learned soon after the boy was placed in their home, many of the doctors with the best reputations did not accept Medicaid patients because of that program’s low payment rates.)
While there were good reasons for proceeding with Michael’s adoption of Adam, it was also the case that the two men had jointly cared for the boy for almost a year while together nursing him into good health. They both considered themselves to be Adam’s parents, and it seemed like a betrayal of the boy for Jon not to join in the adoption petition. In addition, they were worried what would happen to Adam if Michael, after adopting him on his own, died suddenly. There would be no guarantee that the state would then permit Jon to continue raising the child.
The couple did have the option of adopting Adam consecutively. Michael, in other words, could have filed an adoption petition on his own first, and after it was granted, then Jon could have filed his. This was possible because New Jersey courts had recently started approving second-parent adoptions. But there were significant drawbacks to this option: Not only would doing a second adoption be more expensive, but the problems associated with the failure to recognize Jon as a legal parent would remain in place for the several months — if not longer — that it would take to complete the second-parent adoption. After giving the matter much consideration, the couple decided to pursue the joint adoption by trying to persuade the agency, through letters and phone calls, to change its mind and allow both men to adopt together.
At around this time, Michael and Jon received the terrible news that Adam’s biological mother had died of a drug overdose. Only a few weeks later, DYFS proposed that the couple take in another baby boy by the name of Andrew. Andrew’s mother — who, like Adam’s late mother, was HIV-positive and a drug user — had given birth to the premature baby and then checked herself out of the hospital leaving the child behind. The baby was now two and a half months old, still in the hospital, and had not been visited by any family members.
By now, Adam was almost a year old and his health was finally stable. Michael and Jon worried that they might not be able to cope physically and emotionally with taking in a second child, especially one who was just as sick as Adam had once been, while at the same time trying to pressure DYFS to allow them to adopt Adam together. It was clear, however, that baby Andrew desperately needed a home. As a result, despite their qualms, the couple accepted the placement.
In the end, Andrew remained in their home for only two months because the child’s grandmother stepped forward and requested custody of the boy. The agency’s mismanagement of the case — it had not known there was a grandmother who might be willing to take the boy — created further emotional turmoil for the gay couple. But as foster parents, they could not refuse the state’s demand that they turn the child over. The whole incident only reinforced in their minds the need for both of them to adopt Adam as soon as possible.
The gay couple continued making inquiries of the agency regarding whether it would make an exception to its policy and permit them to adopt together. Every time they were turned down, the couple moved up the bureaucratic ladder another notch, until finally they heard back from the Commissioner of the Department of Human Services, who like every other state official before him, gave them the same answer: No.
It was now clear that if Michael and Jon were going to be able to adopt Adam, they would have to take the state to court. The couple contacted the ACLU seeking its assistance, and the organization agreed to represent them. The ACLU lawyers promptly wrote DYFS warning officials that they would have a lawsuit in their hands if they insisted in prohibiting the two gay men from adopting jointly.
Incredibly, at the same time that DYFS was refusing the men’s requests to allow them to adopt Adam together, it continued its efforts to try to place additional foster children — all of them HIV-positive — in their home. The agency’s requests exposed the contradictions of its own policies; on the one hand, it would not allow the men to adopt jointly; on the other, its officials knew perfectly well that the couple were providing excellent care to Adam, and that they could do the same for other children in need. The problem was not that the agency had doubts about Michael and Jon’s ability to be good parents — instead, the problem was that child welfare officials did not want to be perceived as condoning adoptions by gay couples.
In the months that followed, Michael and Jon refused three additional placements of baby boys after concluding that they needed to settle the matter of Adam’s adoption before accepting new children. But their resolve gave way when the state came back with another proposed placement, this time of a baby girl. The child’s name was Madison; she was born prematurely and had tested positive at birth for the HIV antibodies and for heroin. The prospect of raising a baby girl, along with the little boy who was already in their home, simply proved too irresistible for the two men to turn down.
A few months after welcoming Madison into their home, the couple was elated to learn that Adam, as HIV-positive children sometimes do, had seroreverted to being HIV-negative. While the boy had had HIV antibodies in his bloodstream for many months after his birth, they were there in response to his mother’s HIV. Adam, it turned out, did not have the actual virus.
In the spring of 1997, the New Jersey attorney general sent the couple’s lawyers a letter stating that the government was now willing to make a one-time only exception to its policy regarding adoption by unmarried couples by not objecting to Michael and Jon’s petition to jointly adopt Adam. The letter went on to explain that, although the state would not stand in the way of this particular adoption, it would not affirmatively support the petition either, thus leaving it to a judge to approve or disapprove of the adoption without a state recommendation.
The state’s decision on how to handle Adam’s adoption left Michael and Jon with another difficult decision to make. They could accept the attorney general’s offer and proceed with what they had wanted all along, which was to file an adoption petition jointly, in the hope that a judge would approve it. Or, they could continue with their plan of suing the state. If they won the suit, not only would they be able to proceed with their adoption of Adam (and later of Madison), but it would also mean that unmarried couples, both gay and straight, across the state would be able to adopt jointly.
After mulling it over, the two men decided that there was more at stake than just their adoption of Adam. The state’s policy of prohibiting unmarried couples from adopting jointly was hurting children because it unnecessarily denied countless foster children the opportunity to be adopted by two parents who could provide stable and nurturing homes for them. As a result, Michael and Jon decided to sue.
In their dealings with the state up to this point, the couple had engaged in quiet, behind the scenes efforts to try to persuade DYFS to change its policy. But the time for discrete lobbying was over. It was now necessary to publicize their fight with the state, which the couple did by holding press conferences, granting media interviews, and telling anyone who would listen that New Jersey’s restrictive adoption policy was harming children.
In the meantime, the ACLU filed a class action lawsuit, with Michael and Jon serving as lead plaintiffs, challenging the constitutionality of the state’s adoption policy. The gay couple also filed a petition in court seeking to adopt jointly. The former, more complicated, legal case claimed that the policy violated the constitutional rights of unmarried couples, both gay and straight, to the equal protection of the law. The issue in the latter case was the more straightforward one of whether the adoption of Adam by both Michael and Jon was in his best interests. Both cases were assigned to Superior Court Judge Sybil Moses.
Everyone involved in the case knew that if Moses ruled favorably on the adoption petition, she might be open to the possibility of later striking down the state’s policy as unconstitutional. In contrast, if she ruled against Michael and Jon on their adoption petition by concluding that it would not advance the child’s welfare, it was unlikely that she would rule against the state in the class action suit.
In October 1997, Judge Moses ruled that Michael and Jon could jointly adopt Adam. Although that ruling focused on the specific circumstances of the proposed adoption and did not address the constitutionality of the state’s policy, the judge was now on record in holding that a joint adoption by a gay couple was in the best interests of a child. This made it entirely possible that she would proceed to strike down the policy after concluding that there was no valid justification for excluding all unmarried couples from the pool of individuals eligible to adopt.
Fearing that possibility, the state decided two months later to settle the class action lawsuit by agreeing to revise its adoption policies so as to allow unmarried couples to adopt jointly. In doing so, New Jersey became one of the first states in the country to institute an explicit policy providing same-sex couples equal standing with heterosexual married couples when it came to adopting children.
On the day that Judge Moses issued her ruling approving their joint adoption of Adam, Jon had told the gathered media outside the courtroom — with Michael by his side holding their son in his arms — that “we are so grateful for what has happened today. We’re a family now.” But the struggle by both men to adopt their son had always been about more than just their family. As Michael said at a press conference held two months later to announce their settlement agreement with the state, “this is a victory about goodness and equality. It is a victory for all families.”
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