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GA Court of Appeals reverses decision denying adoption and foster home to child because of parents’ “immorality” | Hunter of Justice

GA Court of Appeals reverses decision denying adoption and foster home to child because of parents’ “immorality”

by on August 30, 2010  •  In Family law

From a properly outraged Eugene Volokh at his Conspiracy, commenting on In re the Petition of Theresa Goudeau to Adopt a Minor Child (Ga. Ct. App.), 2010 WL 3369363 -

I should say that the trial court’s decision to take a child away from foster parents because they’re an unmarried couple — and to deny the foster mother’s adoption petition because she’s living with her boyfriend — appears to me to be not only against Georgia law but also cruel. Whatever might be the merits of a preference for married parents over unmarried parents in such matters, the court of appeals was surely right that “to remove [a nearly 3-year-old girl] from the only family she has ever known would be ‘devastating’ to the child.” 

The trial court’s response that “It cannot be in a child’s best interest to be placed in a household which the courts of this state have condemned as immoral” strikes me as deeply inadequate. And any argument that a policy of barring unmarried couples from being foster parents (or barring unmarried people with live-in lovers from being adoptive parents) would be good for other children in the future also strikes me as unsound: It’s not like our system is so awash in would-be foster and adoptive parents who are willing to raise babies born with cocaine in their systems that we can afford to reject apparently eminently loving and effective parents. …

In any case, here’s the appellate court’s discussion of the trial court’s reasoning:

In a written order issued a few weeks later on March 12, 2010, the superior court denied the petition for adoption and held that Goudeau and Lovett should not have physical custody of A.C. because of their relationship with each other. The court found no common law marriage existed between Goudeau and Lovett and found that clear and convincing evidence established they were “living in an immoral, meretricious relationship, … and that the adoption and their continued custody is inappropriate.” Quoting from cases involving illegal contracts, change of custody and visitation cases between divorced parents, and criminal statutes prohibiting sodomy, fornication, and adultery, the court held that allowing a child to be adopted by an unmarried person living with someone else violates Georgia’s “public policy,” which favors the institution of marriage. The [trial] court continued:

DFACS has adopted a policy, in contravention of Georgia law, that persons living in meretricious relationships may serve as foster parents and adoptive parents. DFACS’ Adoption Services Manual (March 2007) expressly confirms this policy by requiring “significant others” to attend [adoption orientation and training]. DFACS’ policy violates the established public policy and laws of this state favoring the institution of marriage, and declaring meretricious relationships as immoral. Georgia recognizes the legitimacy of married couples and single individuals. It does not recognize any other status, regardless of the mores of some members of society who have thrown off long-standing social, moral, ethical and religious constraints. DFACS’ policy offends the laws of this state, the sensibilities of this court, and the common conscious [sic] of the moral, ethical and religious citizens of this state. (Emphasis in original.)


And here is a longer excerpt from the appellate decision:

The superior court denied the petition of Theresa Goudeau to adopt her foster daughter and ordered the Department of Family and Children’s Services to remove the child from Goudeau’s foster care, finding that placing the child with Goudeau violated this state’s “public policy” because Goudeau was not married to the man with whom she lived….

DFACS took the child, A.C., into custody after she was born in July 2007 with cocaine in her system, and immediately placed her into foster care with Goudeau, where she has remained since she was 2 days old. Goudeau and Mortimer Lovett were approved as foster parents in 2001, after DFACS conducted an extensive background investigation, and Goudeau and Lovett fostered many children in their home over the next eight years. After A.C. remained in DFACS custody for more than a year, the Department’s permanent plan was for her to be adopted. In an order effective March 10, 2009, the juvenile court terminated the parental rights of A.C.‘s unknown biological father, found that no suitable relative existed with whom the child could be placed, and re-committed her to the custody of DFACS for adoption. The juvenile court also noted that the child’s guardian ad litem recommended that the rights of both parents be terminated, and that A.C.‘s biological mother planned to surrender her parental rights and release A.C. to DFACS for adoption. The court specifically noted that the child had “been placed with foster parents who want to adopt and who have been investigated and approved. The child is doing well in current placement.”

A.C.‘s mother surrendered her parental rights to DFACS and released the child for adoption on March 12, 2009. In November 2009, with DFACS’s consent, Goudeau petitioned the superior court to adopt A.C….

[T]he guardian ad litem appointed by the court testified that she had interviewed Goudeau, Lovett, and Goudeau’s adult daughter; that Goudeau had cared for Lovett’s children when they were young; and that 80 foster children had lived with the couple since they were approved as foster parents in 2001. She saw no problems with the family unit or family dynamics, which included aunts, uncles, and other extended family members. The court appointed guardian ad litem testified that removing A.C. from the only family she had ever known would have a negative impact on her.

Goudeau, 66, testified that she and Lovett, 46, were in a committed relationship and had been together 20 years, treating each other as husband and wife. He was a father figure to her son and she was a stepmother to his children. They attended the same training programs before being approved to foster children in their home, and had cared for A.C. since she was two days old. She further explained that she had been married twice before, both times to abusive men, and did not want to marry again, although later she clarified that she meant she did not want to marry “by going to a preacher [and] getting it on paper.”

The trial court had directed DFACS to present a witness regarding the requirements for adoption, apparently expressing its concern before the hearing about the fact that only Goudeau sought to adopt A.C. and that Goudeau and Lovett were living together but not married….

The court asked the specialist if he knew what the court was concerned about, and the specialist replied, “I’m honestly not sure except I think it’s the fact that they’re not married.” The court responded, “Absolutely,” and the specialist again noted that the adoption code did not address this situation. He further testified that to remove the child from the only stable family she had ever known “would be devastating to that child.” Further, the relationship between Goudeau and Lovett was stable and long-term. 

The court expressed its opinion that it was “standing in the gap because there is nobody to protect this child in a DFACS adoption” once it got to the superior court, and while the relationship between Goudeau and Lovett was of 20 years, “the next week it’s 15, and the next year it’s 10, and before you know it, we’re down to short term meretricious relationships … and there is no commitment,” with the child “being bounced around” with different adults coming into and leaving her life. The court further expressed its concern that DFACS was allowing unmarried couples to become foster parents, which then allowed one of them to “boot strap” herself into being able to adopt after a year of fostering the child.

In a written order issued a few weeks later on March 12, 2010, the superior court denied the petition for adoption and held that Goudeau and Lovett should not have physical custody of A.C. because of their relationship with each other. The court found no common law marriage existed between Goudeau and Lovett and found that clear and convincing evidence established they were “living in an immoral, meretricious relationship, … and that the adoption and their continued custody is inappropriate.” Quoting from cases involving illegal contracts, change of custody and visitation cases between divorced parents, and criminal statutes prohibiting sodomy, fornication, and adultery, the court held that allowing a child to be adopted by an unmarried person living with someone else violates Georgia’s “public policy,” which favors the institution of marriage. The court continued:

DFACS has adopted a policy, in contravention of Georgia law, that persons living in meretricious relationships may serve as foster parents and adoptive parents. DFACS’ Adoption Services Manual (March 2007) expressly confirms this policy by requiring “significant others” to attend [adoption orientation and training]. DFACS’ policy violates the established public policy and laws of this state favoring the institution of marriage, and declaring meretricious relationships as immoral. Georgia recognizes the legitimacy of married couples and single individuals. It does not recognize any other status, regardless of the mores of some members of society who have thrown off long-standing social, moral, ethical and religious constraints. DFACS’ policy offends the laws of this state, the sensibilities of this court, and the common conscious [sic] of the moral, ethical and religious citizens of this state. (Emphasis in original.)

The superior court then stated that it had to rely on DFACS to place a child with qualified adoptive parents, because once a DFACS adoption reached the court no one represents the child, but that in this case it would not rely on the Department’s recommendation. “The trial court must not only protect the child’s best interest, but it must also ensure that an adoption does not violate the public policy or laws of this state. It cannot be in a child’s best interest to be placed in a household which the courts of this state have condemned as immoral.” (Emphasis in original) …

The court made no other findings regarding whether adoption was in the best interest of the child, but concluded that Goudeau should not be permitted to adopt A.C., and that Goudeau and Lovett should not have custody of A.C….

[A Georgia statute] establishes the legal requirements for an adoptive parent. Among other things, the prospective parent must be at least 25 or married and living with his or her spouse, and must be “financially, physically, and mentally able to have permanent custody of the child.” If the prospective parent is married, the petition must be filed in the name of both spouses. Otherwise, “[a]ny adult person, including but not limited to a foster parent, meeting the requirements of subsection (a) of this Code section shall be eligible to apply to the department or a child-placing agency for consideration as an adoption applicant in accordance with the policies of the department or the agency.” (Emphasis supplied.) …

In this case, absolutely no evidence supports the denial of the petition to adopt. All of the witnesses, including the guardian ad litem appointed by the trial court to represent the child’s interests and the DFACS adoption specialist testified that this adoption was in the child’s best interest, and that to remove her from the only family she has ever known would be “devastating” to the child. The trial court in its order barely refers to the child’s interests, except to make the conclusory finding that her continued exposure to what the court describes as a “meretricious relationship” was not in the little girl’s best interest, and “would have an adverse effect on her moral character.” Nothing in the record supports this finding. Regardless of the trial court’s moral views about unmarried people living together and its conclusion that DFACS acts in contravention of the law by allowing unmarried people to adopt or serve as foster parents, the adoption statute clearly does not prohibit this adoption….

The General Assembly has not prohibited unmarried couples from adopting children. This court applies the law, not its personal viewpoint of social mores. No evidence supports the trial court’s conclusion that adoption was not in this child’s best interest; in fact, all of the evidence was to the contrary….

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One Response to GA Court of Appeals reverses decision denying adoption and foster home to child because of parents’ “immorality”

  1. Karen Ocamb August 30, 2010 at 11:43 PM

    Thanks, Nan, I had not heard about this…..

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