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Son adopted by gay couple to get state benefits
Child welfare officials agree to provide college tuition, health insurance to now-teenage boy in Key West
By Carol Marbin Miller, The Miami Herald
February 9, 2010
Florida's
embattled ban on adoption by gay people suffered another setback
Tuesday, when state child welfare administrators agreed to provide
health insurance, college tuition and other benefits to the adopted son
of a gay Key West man.
For more than a year, the Department of
Children & Families had refused to provide the adoption subsidy to
the adoptive son of Wayne LaRue Smith, a Key West lawyer whose request
to adopt a boy he was raising in foster care was approved by a Monroe
County judge in the fall of 2008.
On Tuesday, DCF lawyers did an
about-face, agreeing in writing to provide the boy with subsidized
college tuition; health insurance under the state's Medicaid program;
and other benefits typically provided to other children who are adopted
from state care.
"It means, finally, after 10 years, he gets
what every other child in the same circumstance gets just by asking,"
Smith said of his now-teenage son, who has not been identified by The
Miami Herald to protect his privacy.
"In a symbolic sense, for
whatever reason, the department has decided to take the better path,
one they should have taken in the first instance," Smith added. "I will
probably wonder forever why it is that we had to go through years and
years of litigation, and hundreds of thousands in expenses, just to get
what other children get automatically."
In Florida, gay men and lesbians can be licensed as foster parents, but a 1977 law forbids them from adopting.
Smith,
who has been in a stable relationship since 1988, was licensed as a
foster parent in 1999. Two years later, DCF placed a 5-year-old boy in
his home. The boy, who has learning disabilities and other special
needs, has remained with Smith ever since.
At the urging of a
Monroe County judge, Smith was named permanent guardian over the boy in
2006, ensuring the boy could remain with Smith and achieve permanency
-- a requirement of both state and federal law for all abused or
neglected children taken into care by the state.
But the
guardianship became a double-edged sword: In August 2008, when Monroe
Circuit Judge David J. Audlin approved Smith's adoption of the boy --
declaring Florida's adoption law unconstitutional in the process -- the
guardianship was cited by DCF as its reason for denying the subsidies.
State
law allows such subsidies only for children in state care. With Smith's
son already in a guardianship, DCF lawyers argued, the boy no longer
met the criteria.
In signing Tuesday's agreement, DCF insisted it was not admitting it did anything wrong.
"It
is understood and agreed that this settlement is a compromise of a
disputed claim or claims, and the agreement made is not and does not
have the effect of any admission of eligibility for adoption assistance
by the department," the agreement states.
In comments to The
Miami Herald Tuesday, the agency continued to maintain that the
settlement does not detract from DCF's position that a child outside
state care is not entitled to a subsidy.
"The focus of this
settlement was on whether the state can legally provide an adoption
subsidy for a special needs child who was not in the department's
custody when he or she was adopted," said DCF spokesman Joe Follick.
"The child in this case was not under our direct care or responsibility
at the time of the adoption.
"The case was closed in 2008 with
the child achieving permanency when the caregiver was awarded plenary
guardianship by the dependency court. This settlement does not address
the ongoing legal consideration of the state's gay adoption laws which,
as an executive agency, we are still bound to follow," Follick added.
Miami
lawyer Alan Mishael, who represents the adoptive parents in two of
three South Florida cases involving a gay person, said the department's
decision to stop fighting the subsidy sends an important message.
"You
have to think: the Department of Children & Families is agreeing to
help defray the expenses of a gay man who adopted a foster child," he
said.
In a separate case, Mishael is representing Vanessa
Alenier, a Hollywood woman who adopted an infant relative in Miami-Dade
last month. In that case, both the adoption and the department subsidy
will become final in one week if DCF does not appeal. DCF presented
neither evidence nor testimony during the adoption trial.
"I hope this is an indication of better things to come," said Mishael