ACLU halts effort to toss adoption ban
Posted on Tuesday, January 13, 2009
The American Civil Liberties Union has halted its efforts - at least for the time being - to delay implementation of a law that bans unmarried cohabiting couples from fostering or adopting children after state's attorneys pointed out that the new law hasn't been applied to anyone.
Proposed Initiative Act 1 went into effect Jan. 1, and the ACLU, which is spearheading a lawsuit to have the law declared unconstitutional, had sought a temporary restraining order to block its implementation until the case can be heard in Pulaski County Circuit Court.
The restraining order was necessary to protect the interests of one of the 29 plaintiffs, Sheila Cole of Oklahoma, the ACLU said. Cole, a registered nurse who lives with her domestic partner, wants to adopt her 7-month-old granddaughter, identified in court filings as W.H. The baby was placed in foster care with a Bentonville family because of injuries authorities say her parents inflicted.
The ACLU argued that Act 1 would prevent Cole's appointment as the child's guardian or custodian.
The attorney general's office opposed the restraining order, saying that proceedings involving Cole's granddaughter have not reached the point where Act 1 would apply. The new law wouldn't apply unless the state attempts to terminate parental rights to the child, which hasn't happened and might not happen, according to court filings.
Act 1 won't prevent a circuit judge from appointing Cole as the child's guardian or custodian, and the new law explicitly states that it won't affect the guardianship of minors, deputy attorney general Colin Jorgensen wrote in his four-page response.
"Act 1 interposes no obstacle to the guardianship or custody that plaintiff Cole seeks," Jorgensen wrote.
But the state's interpretation of the new law will impact guardian and custodial applicants, said Rita Sklar, the ACLU executive director. The state maintains that Act 1 prohibits the Arkansas Department of Human Services from recommending any kind of guardianship or custody for an applicant whom the act would disqualify from adoption or fostering under the act, she said.
"I think that is news to all of us," she said. "Clearly if DHS feels it can't make a recommendation, it does affect them."
In the agreement, approved Monday by Circuit Judge Chris Piazza, ACLU lawyers agreed to withdraw their request for a restraining order on the condition that the attorney general's office notify them if Act 1 is going to be applied against Cole or anyone in a similar situation to permanently affect their eligibility to become foster or adoptive parents. The order requires the attorney general's office to notify the ACLU two weeks before it takes any action under the new law.
Voters passed Initiative Act 1 in November, and the ACLU, representing more than a dozen families, filed suit two days before the new law took effect. They claim that the law violates federal and state constitutional rights to equal protection and due process, protected by the Fifth and 14th Amendments of the U.S. Constitution.
The case was initially assigned to Circuit Judge Timothy Fox at the request of the plaintiffs' attorneys because he had decided what the lawyers believed was a related case, a ban on gay foster parents. Fox ruled in 2004 that the ban was unconstitutional, and the Arkansas Supreme Court agreed in 2006.
But after Fox reviewed the current lawsuit, he ordered it reassigned, finding that the cases weren't similar enough to be related. The case was then assigned to Piazza. No hearings have been set.
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