Home » Legislature & Courts » Briefs and Complaints » Lesbian and Gay Rights Briefs and Complaints
Gay Adoption Legal Complaint
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No.: 99-10058-CIV-KING
Magistrate Judge O'Sullivan
STEVEN LOFTON, et al,
Plaintiffs,
-v-
KATHLEEN A. KEARNEY, et al.
Defendants.
Adult Plaintiffs' (Lofton, Houghton, Smith and Skahen) Response to Defendants' Motion for Final Summary Judgment
This is a challenge, under 42 U.S.C. ? 1983, to a Florida law which says that eligible lesbians and gay men cannot be evaluated to determine their suitability to adopt. Fla. Stats. ? 63.042(3).
Steve Lofton is one of the adult plaintiffs. Mr. Lofton is a pediatric nurse. He is also a foster parent who has been recognized for his talent as a parent and his devotion to his children by the Children's Home Society. Defendants put John Doe into his care as a foster child when Doe was two months old. Doe was a very sick little boy when he came to live with Mr. Lofton and his partner, Roger Croteau. They raised him together with other foster children they have raised since infancy as brothers and sisters. Today, John is healthy and a pretty typical ten year old.
Doug Houghton is another of the adult plaintiffs. He too is a nurse. When John Roe was four, his father, unable to care for him because of John's serious medical problems, asked Mr. Houghton to take him. He is nine now and doing very well. Mr. Houghton is John's legal guardian. John's father would like Doug to adopt John.
Steve Lofton and Doug Houghton would very much like to apply to adopt and be evaluated for their suitability as parents. Wayne Smith and Daniel Skahen are foster parents and eventually would like to be evaluated for suitability to adopt.
But Lofton, Houghton, Smith and Skahen cannot apply and get a determination of their suitability as adoptive parents because they are all gay. That is what this case is about.
1. All of the plaintiffs have claimed and have evidence to show a violation of the equal protection clause of the federal constitution.
The Supreme Court has three versions of its basic equal protection analysis. If the state uses a classification which the court thinks "suspect," the classification must advance a "compelling" governmental interest and must be the least discriminatory way to do it. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995). If the state uses a classification the courts find suspicious, the classification must "substantially further" an "important" interest. Craig v. Boren, 429 U.S. 190, 197 (1976). For any other classification, it must be rational to think that the classification would achieve a legitimate end. Heller v. Doe , 509 U.S. 312, 320 (1993).
A. Expressing disapproval of a group of citizens is not a proper purpose.
The end the government seeks to achieve with the classification in every case must at least be proper. No matter what level of analysis would otherwise apply, improper ends must be set aside, and if no other goal for using the classification appears, it should simply be struck down, without performing any classification/ends analysis. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 432 (1984); U.S. Dep't of Agriculture v. Moreno, 413 U.S. 528, 537-38 (1973).
Any purpose which, when all is said and done, amounts to saying that the state discriminates against those disadvantaged by the classification because it wishes to treat them differently is not proper. Although a purpose to disadvantage the group singled out is frequently described as based on "animus," the precise attitude which drives adoption of the classification is not what matters. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985)(generic "negative attitudes"); Palmore v. Sidoti, 466 U.S. at 433 ("bias"); O'Conner v. Donaldson, 422 U.S. 563, 575 (1975)("unease"); Marks v. City of Chesapeake, 883 F.2d 308, 312 (4th Cir. 1989)(striking down a classification driven by "fear"); Guitterez v. Mun. Court, 838 F.2d 1031, 1042-43 (9th Cir. 1988), vacated as moot, 490 U.S. 1016 (1989)("suspicion"). As the Court explained in Romer v. Evans , the central idea is that the state may not use a classification "for the purpose of disadvantaging the group burdened by the law." 517 U.S. 620, 633, 635 (1996).
The state of Florida has finally settled on two ends which it says are advanced by categorically preventing lesbians and gay men from adopting children. They are: 1) expressing the state's moral disapproval of lesbians and gay men (Defendants' Memorandum in Support of Final Motion for Summary Judgement ("Defs' Memo") at 16-19); and 2) promoting the best interests of children. Defs' Memo at 15-16.
The first purpose is plainly invalid. Enacting a classification to express society's disapproval of the group burdened by the law is precisely what equal protection does not allow. Romer v. Evans, 517 U.S. at 633; U.S. Dep't of Agriculture v. Moreno, 413 U.S. at 537-38. Saying that the disapproval is based in morality does not change that. When the government invokes social disapproval in support of discrimination, it typically says that the disapproval is grounded in morality. So it has been argued that discrimination based upon disapproval of interracial relationships or disapproval of women working outside the home was based on the command of the almighty. Loving v. Virginia, 388 U.S. 1, 2 (1967); Bradley v. Illinois , 83 U.S. 130, 141 (1872)(Bradley, J., joined by Field and Swayne, JJ, concurring). That makes neither a legitimate basis for discrimination. United States v. Virginia Military Inst., 518 U.S. 515, 550 (1996) ; Palmore v. Sidoti, 466 U.S. at 431-32 (court does not hold that society's disapproval for mother's "lifestyle" is insufficiently compelling, but rather that it is not a proper purpose at all). The government has said that discrimination against both mentally and physically disabled people, and against unrelated individuals who live together, is based on "public morals." See, e.g., Smith v. Bd. of Exam'rs of the Feeble Minded, 88 A. 963, 965 (N.J. Sup. 1913)(sterilization of epileptics); Buck v. Bell, 130 S.E. 516, 519 (Va. 1925)(sterilization of "imbeciles"); Moreno v. U.S. Department of Agriculture 345 F.Supp. 310, 314 (D.D.C. 1972). But that does not mean that discrimination for the purpose of expressing that disapproval is legitimate. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. at 448; U.S. Dep't of Agriculture v. Moreno, 413 U.S. at 534-35.
This is not to say that government cannot legislate to achieve things which it thinks morally good. See, e.g., Berman v. Parker, 348 U.S. 26, 32-33 (1954). It is to say most emphatically that government can not single one group of its citizens out for disfavor simply because it "disapproves" of them, and avoid the equal protection clause by saying that the disapproval is based in morality.
B. The state offers no legitimate explanation for banning lesbians and gay men alone from applying to adopt.
The second purpose the state offers for categorically barring lesbians and gay men from adopting is the best interest of children. Generally speaking, of course, this is a legitimate purpose. But once again, the state fails one of the most elementary requirements of equal protection: that it explain why it selected lesbians and gay men and not others for the categorical disability.
In City of Cleburne v. Cleburne Living Center, the United States Supreme Court struck down a city zoning rule which required any home for the mentally disabled to get a special use permit. The city offered seven explanations for the requirement: 1) neighbors did not want such homes located near their property; 2) nearby high school students might harass residents of a home; 3) the location was in a 500 year flood plain; 4) potential city liability for acts of the residents of a home; 5) maintaining low density land uses in the neighborhood; 6) avoiding congestion in neighborhood streets; 7) avoiding fire hazards. 473 U.S. at 448-50.
The Court held that the first two purposes were improper reasons for singling out those who would live in a home for the mentally disabled. The first amounted to deference to the dislike of others, the second, capitulation to it; both of which the court said equal protection does not allow because it amounts to classifying in order to disadvantage the group burdened by the law. Id. at 448-449.
None of the five remaining purposes were improper. However, the Court said that all five failed to explain the city's decision to single out the mentally disabled. As the Court put it:
[T]his concern with the possibility of a flood, however, can hardly be based on a distinction between the Featherston home and, for example, nursing homes, homes for convalescents or the aged, or sanitariums or hospitals, any of which could be located on the Featherston site without obtaining a special use permit. The same may be said of another concern of the Council ? doubts about the legal responsibility for actions which the mentally retarded might take. If there is no concern about legal responsibility with respect to other uses that would be permitted in the area, such as boarding and fraternity houses, it is difficult to believe that the groups of mildly or moderately mentally retarded individuals who would live at Featherston would present any different or special hazard.
Id. at 449. The Court used similar reasoning to dispatch the remaining three rationales. While any might explain in isolation why group homes for the mentally disabled were not allowed, none explained why group homes for the mentally disabled and not similar uses which implicated the same interests were allowed. Id. at 449-50.
Writing this past term, Chief Justice Rehnquist reaffirmed Cleburne's central holding that equal protection demands that classifications ? the difference in treatment ? be justified. In his opinion for the Court in Board of Trustees v. Garrett, the Chief Justice called this requirement "a basic principle of rationality review," and explained that the Cleburne opinion struck down the waiver because the city did not explain why other groups similarly situated in terms of the interests it put forward were not subject to the same restriction. Board of Trustees v. Garrett, 531 U.S. 356, ___, 121 S.Ct. 955, 963, n.4 (2001); for a case applying the same technique before the Cleburne decision, see Bacon v. Toia, 648 F.2d 801, 809 (2d Cir. 1981)(striking down for lack of explanation of different treatment a rule allowing emergency payments to those who lose benefits checks, but disqualifying AFDC recipients).
On this motion, the state argues that it could rationally think denying children homes with parents who are gay would advance their best interests. But as the state is well aware, other groups of potential parents ? for example, those with a history of substance abuse or with a history of violence ? are well known to the state to in fact pose a serious threat to the best interests of children. The state thus faces a problem far more serious here than that faced by the city in Cleburne and the Department of Social Services in Bacon. In those cases, the government failed to explain how the speculative harm posed by the disadvantaged group was more serious than speculative harm posed by similar groups. City of Cleburne v. Cleburne Living Center, 473 U.S. at 449-50; Bacon v. Toia, 648 F.2d at 809. Here, plaintiffs will show that the state knows that potential parents with substance abuse or violence in their past pose a real, serious threat to the children of Florida, while it has little beyond speculation to think lesbians and gay men are not fit parents. Deposition of John Perdue Perry, III, Ex A to Second Cooper Decl. ("Perry Dep."), at 111-112, 113, 124-129; Deposition of Linda Radigan, Ex. A to Third Cooper Dec. ("Radigan Dep."), at 137-139, 146-148.
Thus, for example, in 1995 (the last year for which figures are available), fifty-seven percent were taken away and placed in foster care because of parental substance abuse. Radigan Dep. at 139-142. But defendants are unaware of a single child who is in foster care because of any harm associated with his or her parents being gay. Joint Pretrial Stipulation ("Joint Stip"), at 4, ?5; Perry Dep. at 111-112, 123.
The state would be hard put to justify placing the same adoption disability on lesbians and gay men that it puts on those with a history of violence or abuse. But in fact, the state treats prospective parents who are substance abusers and violent far better than lesbian and gay prospective parents, reviewing their applications on a case-by-case basis. Joint Stip, at 4, ??1-4.
Looking more closely at the argument the state makes for excluding lesbians and gay men only makes the state's position more difficult. The state says that excluding lesbians and gay men is in a child's best interest because children are raised best by a male and a female parent. Defs' Memo at 15-16. But to justify the classification ? the absolute exclusion of lesbians and gay men and the case-by-case analysis of, among others, those with a history of violence or substance abuse ? the state would have to say that it believes providing male and female parents is more important to the best interests of a child than preventing the physical and emotional damage it knows results from being in a home with parents who are violent or who have substance abuse problems. That argument is virtually foreclosed by the fact that the state itself places children for adoption in homes with single parents ? 25 percent statewide; 40 percent in Miami-Dade County ? and places children in foster care, including long-term foster care, with lesbians and gay men, both things it would never knowingly do with violent adults or substance abusers. Joint Stip. at 4-5, ??6, 7, 8, 11.
The burden the state thus faces here ? justifying worse treatment for a group which at best speculatively impacts the interests it invokes than it gives to those who admittedly pose a serious threat to it ? will likely prove at trial to be insurmountable. Here, the state has not even made an attempt at an explanation.
C. This classification in this law is subject to exacting scrutiny.
Thus, applying the most basic principles of equal protection analysis, the state is not entitled to summary judgment. This Court therefore need not decide at this stage of the case whether the classifications involved here should be treated as "suspect," and subjected to one of the two more strict equal protection standards. See Hopper v. Bernalillo County Assessor, 472 U.S. 612, 618 (1985)(where the proper mode of analysis is an open question and the classification will not survive even the most lenient review, the appropriate course is to resolve the case without deciding whether heightened review is appropriate).
But for two distinct reasons, the classification involved here should receive exacting review. First, classifications which disadvantage lesbians and gay men are inherently suspect, because they are a discrete and insular minority, and sufficiently isolated due to prejudice that they are unable to protect their interests the way others are in the ordinary political process. United States v. Caroline Products, 304 U.S. 144, 152-53 n.4 (1938). Since the question is open, it deserves more extended treatment, which plaintiffs will provide should the Court wish to address the question.
Second, at least as to Mr. Lofton and Mr. Houghton, the level of review must be strict because the law attaches radically different treatment to persons exercising the same fundamental federal right. As noted below, Mr. Lofton and Mr. Houghton have alleged that they have formed a parent/child relationship with their sons, and neither those allegations nor the plaintiffs' ability to prove them are disputed on this motion. See Amended Complaint, ?? 6, 8, 11, 13, 19, 21. Under the due process clause of the 14th Amendment, Lofton and Houghton's right to maintain those relationships is "fundamental." Troxel v. Granville, 530 U.S. 57, 65 (2000).
In Shapiro v. Thompson, the Supreme Court held that any classification which treated two groups of people exercising the same fundamental federal right differently could only be upheld if "shown to be necessary to promote a compelling governmental interest." 394 U.S. 618, 634 (1969). The vitality of Shapiro's analysis was reaffirmed two years ago in Saenz v. Roe, 526 U.S. 489, 499 (1999).
The state concedes the facts which make it impossible for it to prove that excluding lesbians and gay men from the screening process is necessary to help children. There are over 3400 foster children awaiting adoption in Florida. Joint Stip. at 5, ? 15. Thirty-six per cent of children in Department of Children and Families' ("DCF") custody have been in foster care over four years. Joint Stip. at 5, ? 16. Moreover, the state allows single heterosexuals to adopt, and indeed 25 percent of adoptions out of foster care statewide go to singles. In Miami-Dade, the figure is 40 percent. Joint Stip. at 6, ?? 24, 25. The state places children in long term foster care with lesbians and gay men. Joint Stip. at 4, ?8. See also Joint Stip at 4, ? 5, Perry Dep. at 111-112, 123.
Plaintiffs have "stated" an equal protection violation.
2. The plaintiffs have standing to make their equal protection claims.
A. Mr. Lofton.
The state says Mr. Lofton lacks standing to make his equal protection claim. The state, it now says, never denied his application to adopt because he is gay. It denied it instead because the application was incomplete. Defs' Memo, at 22-23.
First, even if the denial of Mr. Lofton's application and the basis for it were still an issue in this case, it would be far from an undisputed issue. A reasonable trier of fact could conclude that the Department knew Mr. Lofton was gay, so it hardly lacked information it needed to process the application. See Deposition of Steven Lofton, Ex. 1 to Defendants' Concise Statement ("Lofton Dep."), at 151 (by 1994, Mr. Lofton's relationship with Mr. Croteau was obvious to the Department). Moreover, the Department letter about the question he did not answer, on which the state places great emphasis here, did not go unanswered. On February 9, 1995, after Ms. Kitt's letter, Defendants' Concise Statement, Ex. 6, Mr. Lofton's lawyer wrote the Department, asking for a meeting to deal with Mr. Lofton's worry that if he answered the question about his sexual orientation, his children would be taken away. In that letter, Mr. Lofton's lawyer said: "In any event, he will answer the question should it be rejected for non-cooperation for not responding." Letter from William E. Adams, Jr., Cooper Decl. Ex. A. A reasonable trier of fact could conclude that Mr. Lofton was willing to answer the question if the Department needed the information, and that the Department didn't insist that he do so because it already knew he was gay. A reasonable trier could also conclude that the Department did not approve Mr. Lofton's application because he was gay, not because it did not know if he was.
But far more important, the basis on which Mr. Lofton's application was denied is not at issue in the case. Paragraph 11 of the Amended Complaint says:
11. DOE has been freed for adoption and LOFTON desires to adopt him in order to secure their parent-child relationship and afford DOE all of the benefits of a legally recognized parent-child relationship. LOFTON submitted an application to defendant CHARLES AUSLANDER's predecessor as District Administrator for DCF District XI to adopt DOE; however, because LOFTON is a gay man, he was automatically disqualified under section 63.042(3) from adopting DOE. Under the Interstate Compact on the Placement of Children, in order for LOFTON to adopt DOE in Oregon, the State of Florida's approval is required. DOE's brother and sister have not been freed for adoption. Thus, LOFTON is not seeking to adopt them at this time.
Defendants filed an amended answer. In response to paragraph 11, they alleged:
11. DCF admits that in the course of enforcing Fla. Stat. sec. 63.042(3), DCF has declined to extend the adoption privilege to Lofton. DCF further admits that John Doe has been freed for adoption. The remainder of the allegations of paragraph 11 are denied.
By admitting that it "has declined to extend the adoption privilege to Lofton," the state has admitted that it refused to let him adopt. By admitting that it did that "in the course of enforcing Fla. Stat. sec. 63.042(3)," the law which says that otherwise eligible gay men and lesbians may not adopt, the state has admitted that it refused to let Mr. Lofton adopt because he is gay.
Admissions in a pleading are judicial admissions, binding on the party who makes them. Missouri Hous. Dev. Comm'n v. Brice, 919 F.2d 1306, 1314 (8th Cir. 1990). Even if the party offers post-pleading evidence which contradicts the admission, the admission is binding, and the facts admitted are no longer in issue. Ferguson v. Neighborhood Hous. Servs. of Cleveland, Inc., 780 F.2d 549, 550-551 (6th Cir. 1986).
That the state refused to let Mr. Lofton adopt because he is gay is settled.
B. Mr. Houghton, Roe, Mr. Smith and Mr. Skahen
The state makes no claim that the other plaintiffs have not sufficiently alleged standing in the Amended Complaint, or that they will be unable to prove those allegations. Instead, it says the court may not consider their allegations that they applied to adopt, or any proof offered in support of them, because they applied after the original complaint was filed.
The state relies on a footnote in Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n.4 (1992), for the proposition that "standing is measured as of the date suit is filed." Defs' Memo, at 21 (emphasis in the original). But the footnote in Lujan does not use the words the Memorandum emphasizes. Instead, it says "[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed." 504 U.S. at 569 n.4 (emphasis in the original).
The complaint in this case is the amended complaint. Under F.R.C.P. 15(a), an amended complaint supersedes the original, which no longer has any function in the case. Fritz v. Standard Sec. Life Ins. Co., 676 F.2d 1356, 1358 (11th Cir. 1982); 6 Wright and Miller, Federal Practice and Procedure, ? 1476, at 556-557.
Rule 15(d) expressly allows amended or supplemental pleadings to cover events which happen after the original pleading is filed. And in Matthews v. Diaz the Supreme Court held that Rule 15(d) allows pleadings to be supplemented to add post filing facts in order to cure a jurisdictional defect. 426 U.S. 67, 75 (1976). Matthews involved a challenge to a federal medical insurance regulation. Application for the program was "a nonwaivable condition of jurisdiction." Id. at 75. One of the plaintiffs, Espinoza, had not applied for the program. Id. at 71. The government moved to dismiss on that basis. Two days later, Espinoza filed his application. Id. at 72. The Supreme Court held that since the jurisdictional defect was cured while the case was pending in the District Court, the complaint could still be amended to allege the cure when the case was before the Supreme Court. Id. at 75.
Surely, if Espinoza had standing in Matthews, where the application essential to jurisdiction was submitted after the complaint was filed and the complaint was not amended until the case reached the Supreme Court, Houghton, Roe, Smith and Skahen's have standing on the basis of the facts alleged in the amended complaint timely filed in this Court.
3. The parent/child relationships Mr. Lofton and Mr. Houghton have with their sons are protected as fundamental rights under the federal constitution.
There is no need in this case to speculate about what new interests the Supreme Court may find encompassed within the rights protected by the due process clause of the 14th Amendment. As the U.S. Supreme Court recently observed in Troxel v. Granville, the liberty interest invoked by the plaintiffs in this case, "the interest of parents in the care, custody, and control of their children ? is perhaps the oldest of the fundamental liberty interests recognized by this Court." 530 U.S. at 65. Since at least Prince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court has recognized that it is not biological parents alone whose interest in their relationships with their children is entitled to protection. The critical core of the family interest protected by the due process clause is the emotional bond that develops between family members as a result of shared daily life. Lehr v. Robertson, 463 U.S. 248, 261 (1983). As the Court put it in Lehr:
[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in "promot[ing] a way of life" through the instruction of children ... as well as from the fact of blood relationship.
Id. at 261 (internal citation omitted), quoting Smith v. Org. of Foster Families, 431 U.S. 816, 844 (1977). That Lofton and Doe are part of a foster family does not make their relationship constitutionally unprotected. In Smith, the United States Supreme Court recognized that a foster family relationship could warrant constitutional protection. 431 U.S. at 844.
Although defendants say almost in passing that an emotional bond is not enough, the case they cite acknowledges that under Smith, foster parents and children can develop a constitutionally protected parent/child relationship, and suggests that adults and children without any legal bond at all may be able to form them. See Wooley v. City of Baton Rouge, 211 F.3d 913, 923 (5th Cir. 2000). However, on this motion defendants do not claim that Lofton and Houghton are incapable of having formed a constitutionally protected relationship with their sons, or that they have failed to allege that kind of a relationship, or that they will be incapable of proving at trial that they have that kind of a relationship. See Defs' Memo at 9-10. Instead, they say that Florida's law prohibiting them from adopting their sons does not interfere with their relationship. Id.
But it very much does. The federal constitution places both procedural and substantive limits on the power of a state to interfere with the parent/child relationship, a relationship "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-759 (1982). The state may not terminate a parent/child relationship without "powerful countervailing" reasons, Stanley v. Illinois, 405 U.S. 645, 651 (1972), and it may not do so without very significant procedural protections, Santosky, 455 U.S. at 758-68.
For the most part, Florida law is in harmony with the federal constitution's basic protection of parents and children. A parent/child relationship cannot be ended without a full evidentiary hearing before a judge, applying all the civil rules of evidence. Fla. Stats. ? 39.809. A parent/child relationship cannot be ended unless it threatens the life, safety or well-being of the child, or the parent has abandoned the child or, under certain circumstances, is incarcerated. Fla. Stat. ? 39.806. Even a temporary removal from custody requires probable cause to believe the child has been abused, neglected or abandoned. Fla. Stats. ? 39.401(b). Immediate notice to the parents and a prompt hearing is required. See, e.g., Fla. Stats. ? 39.402.
But that high standard and those important procedural protections apply only if an individual is legally a parent under Florida law. A guardian, like Doug Houghton, can have his relationship legally destroyed if any of a wide variety of individuals files a petition to end it, and the court finds it would be in the ward's best interest to live with someone else. That standard is plainly insufficient to deprive a parent of custody under the due process clause. Fla. Stats. ? 744.474; see Troxel v. Granville, 530 U.S. 57 (2000). For a foster parent like Steve Lofton, the situation is far worse. The defendants may remove his son from his home whenever they think that would be in the boy's best interests. No judicial proceeding and no independent determination of cause is required. Fla. Stats . ? 409.165.
The only way the state will provide either Mr. Lofton or Mr. Houghton with the protections to which the federal constitution entitles them are if they adopt their sons. See Fla. Stats . ? 63.172(c). But that is precisely what the state law challenged in this case forbids. Fla. Stats. ? 63.042(3). The law of the state of Florida denies Lofton, Houghton and their sons the protection the federal constitution guarantees them, and defines their relationship with rules which do violence to their federal rights. That is the injury ? 63.042(3) works.
That leaves defendants only with the claim that the actual terms of the law do not matter. There can be no dispute, defendants apparently argue, that the state would never in fact treat these families as its laws say it will; it will instead treat them, in effect, as a family. See Defs' Memo at p. 9 ("This argument is makeweight. ... Plaintiffs continue to live together to this day."). This is the refrain defendants have played since the inception of this case. See Motion to Dismiss, July 23, 1999, at p. 10 ("In fact, the number of years each has resided with his foster parents(s) would seem to demonstrate quite the opposite, even a kind of de facto permanency.")(emphasis in original).
But there is no permanency here. The state's chilling phone call to Mr. Lofton on June 22, 2001, asking for the names of others who might be willing to adopt his son made the risks inherent in his legal status all too obvious. Memo from Andrea Owes, First Cooper Decl., Ex. D. In refusing even to agree to allow Mr. Lofton's son stay with him while this case goes on, the state stood on the very laws it now implies do not matter, insisting that Florida law now gives it no authority to leave Mr. Lofton's son with him. Memo from Andrea Owes, First Cooper Decl., Ex. D.
The shelter the federal constitution gives to parent/child relationships means something, something important to those who need it. Far from being indisputably unimportant, it is plain that Mr. Lofton, Mr Houghton and their sons need that shelter.
4. Mr. Lofton has standing to make his fundamental rights claim.
The state makes two arguments. First, the state says that Mr. Lofton lacks standing because the state has not in fact taken his son away from him. However, the federal constitution does not require that the damage be done before a challenge is brought. Challenges before harm occurs are permissible so long as the plaintiff demonstrates "a realistic danger of sustaining direct injury as a result of the statute's operation. ..." Babbitt v. United Farm Workers, 442 U.S. 289, 298 (1979).
As the Eleventh Circuit has explained, a plaintiff can meet that test if he can show that he is "threatened with application of the statute," or that "application is likely" or that there is a "credible threat of application." Socialist Workers Party v. Leahy, 145 F.3d 1240, 1245 (11th Cir. 1998). Socialist Workers challenged a Florida law which required some party officials to post bonds. The Florida Secretary of State issued an advisory opinion that she had no authority to waive the requirement. Two small parties sued. In discovery, the Secretary's designee testified that the bonding requirement would not be enforced against the parties. But the Secretary later wrote the plaintiffs that if the bond was not posted, they would loose their status as recognized parties. The Secretary then claimed that the letter was a mistake, and the district court dismissed the action. Socialist Workers Party v. Leahy, 145 F.3d at 1242-44.
The Circuit reversed, finding that the letter constituted an explicit threat, and that a credible threat remained despite the Secretary's disavowal of the letter, mainly because of the contradictory positions her office had taken. Id. at 1245-47.
As noted above, during this case, the state has implied from the start that it would not take Mr. Lofton's son away, even referring to his situation as "de facto permanency." Defendants' Motion to Dismiss, July 23, 1999, p. 10. As also noted above, less than a month ago the state changed its tune dramatically, telephoning Mr. Lofton to seek the names of other who might be willing to adopt his son. Memo from Andrea Owes, First Cooper Decl., Ex. D. But here the similarity to Socialist Workers ends. When confronted with the call, far from disavowing any intent to take Mr. Lofton's son away, the state insisted in writing that it had no legal authority even to leave Mr. Lofton's son alone until this case comes to a conclusion. It offered instead the ominous "assurance" that it would not remove the boy "prior to locating a suitable adoptive home." Letter from Casey Walker, First Cooper Decl., Ex. G.
The Department's call to Mr. Lofton is every bit the threat the letter in Socialist Workers was. The state's subsequent embrace of it in writing makes the threat far more immediate than the inconsistent positions taken by the state in Socialist Workers. Mr. Lofton has standing.
The state also argues that any harm Mr. Lofton would suffer if it took away his son would be "self inflicted" because he has refused the option of becoming his son's legal guardian. If the state treats someone unconstitutionally, even the availability of a constitutional option does not absolve the state or render the case nonjusticiable. Campbell v. Wood, 18 F.3d 662, 680-81 (9th Cir. 1994). But Guardianship is not a constitutional alternative. As demonstrated above, it would provide Mr. Lofton far less protection than that to which he is entitled under the federal constitution. Having watched "de facto permanency" evolve almost over night into just so long as it takes to locate a "suitable adoptive home" with someone else, Mr. Lofton can be pardoned if he is anxious for the full measure of federal protection. Finally, taking the guardianship would mean leaving his son without Medicaid coverage for what could be significant health problems. Deposition of Timothy Arcaro, Ex. 12 to Defendants' Concise Statement ("Arcaro Dep."), at 87; DCF e-mails, Cooper Dec., Ex. C. John Doe's guardian testified that even the Department believed that was not in John Doe's interest, a fact not in dispute here. Arcaro Dep., at 87.
Mr. Lofton has standing.
5. Mr. Houghton has standing to make his fundamental rights claim
Mr. Houghton has standing. As defendants point out, as a guardian Mr. Houghton is required by Florida law to file an annual plan for his son and an annual report. Fla. Stats. ? 744.3675. Among other things, those filings require him to tell the court if his son has had medical treatment in the last year, and if so, the details, his social skills and how adept he is at personal relationships. Without a showing of extraordinary need, the federal constitution does not allow the state to demand intimate reports on children from their parents. See generally Troxel v. Granville, 530 U.S. 57 (2000); Meyer v. Nebraska, 262 U.S. 390 (1923). And defendants can hardly say the reporting requirements are meaningless; they invoke them against Houghton here.
In any event, if one plaintiff has standing to raise a claim, there is no need to consider the standing of others so long as they do not seek different relief. U.S. Dept. of Labor v. Triplett, 494 U.S. 715, 718 (1990); 13A Wright and Miller, Federal Practice and Procedure, ? 3531.15, at 101-102. Declining to pass on the standing of other plaintiffs is no bar to considering their particular interests when the court reaches the merits. See, e.g., Lee v. Weisman, 505 U.S. 577, 585, 594 (1992)(taxpayer/parent's standing not considered since daughter had standing; parent's objections and injury considered in determination of merits).
Conclusion.
The motion for summary judgement should be denied.
Dated: July 18, 2001.
Respectfully Submitted
MATTHEW COLES
LESLIE COOPER
The American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004-2400
Telephone: (212) 549-2627
STEVEN ROBERT KOZLOWSKI
Fla. Bar. No. 87890 The Kozlowski Law Firm
927 Lincoln Road, Suite 208
Miami Beach, FL 33139
Telephone: (305) 673-8988
ELIZABETH SCHWARTZ
Fla. Bar No. 114855
407 Lincoln Road, Suite 4-D
Miami Beach, FL 33139
Telephone: (305) 674-9222
RANDALL MARSHALL
Fla. Bar No. 181765
American Civil Liberties Union Of Florida
4500 Biscayne Blvd., Suite 340
Miami, FL 33137-3227
Telephone: (305) 576-2337
Attorneys for Plaintiffs Steven Lofton,Douglas E. Houghton, Jr., Wayne LaRue Smith and Daniel Skahen
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by facsimile transmission and by overnight delivery this 18th day of July, 2001, to CASEY WALKER, Esq., Moss Henderson Blanton & Lanier, P.A., 817 Beachland Blvd., P.O. Box 346, Vero Beach, Florida, 32964-3406, and by first class mail to CHRISTINA A. ZAWISZA, Children First Project, Nova Southeastern University, Shepard Broad Law Center, 3305 College Ave., Ste. 325, Ft. Lauderdale, Florida 33314-7721.
Randall C. Marshall
