he Honorable Michael O. Leavitt
Office of the Governor
Utah State Capitol
Salt Lake City, Utah
Re: H.B. 103 (Amendments to Child Welfare)
Dear Governor Leavitt:
The undersigned organizations respectfully urge you to veto H.B. 103. We share with you a profound commitment to policies and procedures that will ensure that children in need of adoption will have as adoptive parents those "who can give the children the reasonable nurture, care, guidance and love as a foundation for reaching their highest potential as human beings." See In Re W.A.T., 808 P.2d 1083 (Utah 1991) (Stewart, J., concurring). Unfortunately, H.B. 103 does nothing to further that objective. Instead, it deprives children of opportunities for placements that could change their lives for the better, while diverting resources that could be spent on children to the defense of drawn out, expensive and divisive litigation and giving the State an extreme, negative image as it opens its doors to visitors in 2002.
If signed into law, this bill will put Utah far out of step with the "best practices" followed in virtually every other state when making difficult placements of children in need of adoption. Those practices guarantee each child in state custody a case-by-case determination of whether an adoptive placement in a particular home is in that child’s best interests. Such a judicial determination is required because "all children in foster care . . . have a constitutionally protected right to be free of arbitrary state decisions that have a significant impact on their custody and welfare." In re Adoption of Jonee, 181 Misc. 2d 822, 828, 695 N.Y.S.2d 920, 925 (N.Y. Fam. Ct. 1999) (invalidating New York State Adoption and Safe Families Act, which prohibited adoption or foster care by persons convicted of certain felonies). This bill is a radical departure from that established, constitutionally required practice. It imposes a permanent, absolute ban on placing children with adults who may well be able to provide them with the love and support they need to achieve their highest human potential, declaring by legislative fiat that it can never be in the child’s best interest "to be adopted by a person or persons who are cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state." (Ll. 281-283)
Besides arbitrarily depriving children of opportunities for adoption, H.B. 103 violates the Equal Protection guarantees of both the Federal and Utah Constitutions by prohibiting potentially committed and stable couples while continuing to allow single individuals to adopt, even if they are living with other adults, so long as they are not "cohabiting." It therefore does not address the principal evil the DCFS Board purportedly sought to avoid with its administrative rule - access to and abuse of children by unrelated adults present in the household. The arbitrariness and the lack of fit between important state objectives and legislative means inherent in this bill invite a lawsuit on behalf of children and potential parents affected by its terms. This State’s history with such lawsuits, from the Jane L. litigation to the continuing David C. case, demonstrates a tragic indifference to the allocation of scarce public resources. We implore you not to force the State down that road yet again.
We should note that any legitimate state purpose to be achieved by this bill can be fully realized through the effort, which we believe is currently underway, to define administrative policies and procedures that would establish a preference for placing children in state custody in home where a man and a woman are legally married (see ll. 132-135). We would not foresee a legal challenge to such a preference so long as it gives child welfare professionals and judges the flexibility to place a child in some other situation upon a clear finding that such a placement would be in the child’s best interest. Any other approach, to use Senator Nielson’s term, is plainly "mean-spirited" and will exact a heavy cost in both human and monetary terms.
National Center for Youth Law
Kathryn D. Kendell
National Center for Lesbian Rights
ACLU of Utah