By Steve Kilar, The Baltimore Sun
6:15 PM EST, November 12, 2011
The rows of wooden benches were filled with seven families for adoption day in Baltimore City Circuit Court last month.
A pair of gay men seeking to adopt a baby. Three lesbian couples, two with twins. Two single moms with two kids between them.
And one heterosexual couple — the only nuclear family with a mother and father — who had filed to adopt a young boy.
Most adoption days in Baltimore look like this. The city is the favored jurisdiction among Maryland's 24 circuit courts for same-sex adoption petitioners because of a legal precedent written 15 years ago and because of local procedures that allow all Maryland residents — regardless of which county they call home — to file adoption paperwork in the city.
Maryland's adoption statute is silent on same-sex parents, leaving the matter to the discretion of each circuit judge. Baltimore, according to adoption lawyers, appears to be the only jurisdiction where judges have agreed to treat homosexual couples the same way they treat straight couples. Other jurisdictions, attorneys say, are a gamble for would-be parents who are gay.
So even as more circuit courts become willing to grant adoptions to same-sex couples — at least seven other counties have done so — lawyers who specialize in representing gay families nearly always tell their clients to file in Baltimore, steering them away from their home counties if judges there are known to turn down adoption applications or if the judicial waters are untested.
"Baltimore City is the preferred venue just because you don't know what you're going to get in Baltimore County," said attorney Mark Scurti, who waited in the courtroom on the morning of adoption day last month. His clients, Cynthia Dennis and Kelly McCoy of Parkville, were jointly adopting a 14-month-old boy named Jamie.
Couples like Dennis and McCoy are reshaping the cultural and legal definition of the American family. About 12,500 same-sex couples live in Maryland, and about one in five have children, according to a recent U.S. Census Bureau report.
But while the topic of civil rights for gay couples ignites heated and emotional debates — in Maryland, where the General Assembly is expected to take up same-sex marriage again next year; and in Florida, where an appeals court struck down a ban on gay adoptions last year — the Baltimore court's policies have largely gone unnoticed and unquestioned.
When the issue has been raised elsewhere, conservative groups have decried what they call judicial activism, contending that children should be raised in families with a mother and father.
"The best choice is a family structure that provides the closest parallel to their own parents, and that would be a married couple, not a same-sex couple," said Carrie Gordon Earll, a spokeswoman for CitizenLink, the policy arm of the Christian conservative organization Focus on the Family.
Janice Crouse of Laurel, a senior fellow at the Beverly LaHaye Institute, the think tank for the socially conservative organization Concerned Women for America, agreed. "We don't want to use our children as guinea pigs by arbitrarily … placing them in homes with two moms or two dads."
But gay and lesbian advocates point to support from the medical community. The American Psychological Association disputes the claim that children are more successful when raised by heterosexual parents. The American Medical Association also supports adoption by same-sex couples.
In Baltimore's family court, no one raised objections during last month's adoption day, which had a celebratory atmosphere.
"It didn't register," said Silver Spring resident Patricia Gbeti, referring to the fact that six of the nine children in court that day were being adopted by gay families. Gbeti adopted an 18-month-old from Central Africa, Carolyne, who was dressed in taffeta and bows for the big day.
"Family composition doesn't matter as long as the child can find a home," said Gbeti, who grew up in an adoptive home in France and plans to raise her daughter alone. "Whether one mom and one dad or something else, it doesn't matter."
A history of acceptance
Seventeen states and the District of Columbia allow adoption by same-sex couples because of appellate court decisions or statutes, according to the National Center for Lesbian Rights. Maryland is among about a dozen additional states where at least one county has granted adoptions to same-sex couples, the group found. Confidentiality in adoption cases makes it difficult to get a definitive count.
Six states ban or restrict adoptions by same-sex couples.
Baltimore has a recorded history of adoption by gay and lesbian couples that dates to 1996, when a written opinion on the matter was issued.
In that case, Judge Kathleen O'Ferrall Friedman granted lesbian partners, who each had a child, parental rights over both children. She reasoned, in part, that adultery does not disqualify a person from adopting, so neither should a person's sexual orientation.
Two loving parents, regardless of their gender or sexual orientation, were "consistent with the children's best interest," wrote Friedman, who retired in 2002.
Her decision became the legal cornerstone for adoption by Maryland's gay residents, and the interpretation of that precedent has expanded to allow gay couples, like Dennis and McCoy, to jointly adopt children who are not biologically related to either partner.
"It was my understanding that it was the first time the issue had been brought to the court," said Friedman, whose decision garnered attention across Maryland from gay and lesbian residents who wanted to adopt.
Since the late 1990s, at least one judge in Anne Arundel, Baltimore, Frederick, Howard, Montgomery, Prince George's and Calvert counties has granted adoptions to same-sex couples, according to Scurti, who also teaches a course on sexual orientation and the law at the University of Maryland School of Law.
The list could be longer, he said, but researching adoption files is "almost next to impossible" because they are sealed. Often the only people who know the gender of the petitioners are judges and attorneys involved in the case.
But Baltimore has remained a more reliably gay-friendly venue. In other jurisdictions, even if one judge in a county has approved an adoption for a same-sex couple, the next couple might appear in front of a different judge who has the opposite opinion.
That happened in June 2000, when Montgomery County Circuit Judge Vincent E. Ferretti wrote an opinion denying a lesbian parental rights over her partner's natural child. It was his last written decision, he said in an interview, and after he filed the 18-page opinion he retired. Ferretti now lives in North Carolina.
"It was an issue for the legislature and not for the courts," Ferretti said.
He said he hoped the couple would file an appeal that would spur the legislature to change the law.
But that's not what happened. After he left the bench, the couple amended their petition and refiled it in Montgomery County. The amended case was assigned to Judge Paul A. McGuckian, who agreed with Ferretti: Maryland's law is silent on whether two unmarried people, regardless of sexual orientation, can adopt and, in this area of jurisprudence, law created from the bench cannot be a substitute for a statute from Annapolis.
In order to stop the couple filing an appeal — and possibly establishing a legal precedent that could prevent adoptions by same-sex couples — Baltimore City Circuit Judge Joseph H.H. Kaplan reached out to the couple.
Come to Baltimore, he told the couple, and we will grant your adoption.
Kaplan, the chief judge for Baltimore's Circuit Court at that time, had instituted a unique procedure — called waiver of venue — that made nonresidents eligible to file adoption cases in the city.
"We had literally thousands of kids bouncing from foster care home to foster care home," said Kaplan, who retired in 2006. He believed that welcoming a wider pool of adoptive parents had the potential to reduce the number of children in need of permanent homes. "The most important thing in life is attachment," he said.
About that time, by coincidence, the Maryland attorney general's office wrote an advisory opinion that concluded nothing in the state's law prohibited same-sex couples from adopting.
From that point forward, word spread in the gay community and among attorneys about a same-sex couple being denied an adoption in liberal Montgomery County and about Kaplan's waiver-of-venue rule in Baltimore. The city became the place to adopt.
Kaplan "deserves a lot of credit for developing a procedure we follow today," said Susan Silber, a Takoma Park attorney who has represented many same-sex couples in adoption proceedings. "There's been a strong shared belief [among Baltimore's judges] that these adoptions are good for the children."
Scurti agreed, calling Kaplan an "institution" in Baltimore City Circuit Court.
Still, the judges and attorneys who have made Baltimore a haven for gay families are concerned that their work could be dismantled.
The state legislature could clarify the adoption law to exclude gay couples. But the more likely scenario, given the Democrat-controlled General Assembly, might be an appellate decision denying the right of same-sex couples to adopt.
Kaplan, for one, hopes no same-sex couple feel they need to go forward with an appeal, which could upset the status quo: "I like the way it has been going."
Friedman agreed. "I'm very pleased to have been a part of a change in the court's thinking," she said. "But it's still a controversial issue."
Legal frustrations remain
After his adoption proceeding last month, Jamie McCoy-Dennis squealed and grabbed at Baltimore City Circuit Judge Videtta A. Brown, who was taking away his pacifier to ready him for a courtroom picture with his moms.
"The judge came out and met us and met the baby," mother McCoy gushed after the session adjourned.
Knowing in advance that Brown would not deny their petition because of their sexual orientation made the adoption process less stressful, said Dennis, the other mother.
Every year the mothers plan to celebrate Jamie's birthday and his "gotcha" day, the day they got him from their adoption agency. It took just over a year for Jamie's adoption to be finalized in Baltimore's family court.
"That first day, that day after we got home from court, I was saying to him, 'Jamie, everything is different now,'" said McCoy. "But he kept playing the same games, with the same toys. For him, nothing is different."
Brenda Murphy, who adopted the biological children of her partner, Christa Craven, on that day in court, said it seemed unfair that she had to jump through legal hoops to gain parental rights over the children she has considered her own since they were conceived. The couple has made all decisions about having and raising children together, she said.
"I'm really grateful I have this opportunity, but I'm also really angry that I even have to go through with this," Murphy said.
The children, Rosalie and Braxton, were born in Ohio, where adoption by gay couples is not permitted. The family moved to Maryland in part to protect their family. If they move out of state, there's no guarantee that Murphy's parental rights, granted in Baltimore, will be respected.
States typically recognize adoptions approved in other states, but some same-sex couples who have left states where their adoptions were granted have encountered courts unwilling to treat their adoptions as legally binding, according to lawyers who have worked on such cases. For instance, if Craven and Murphy were to split up, a court could refuse to recognize Murphy as the mother and grant full custody to Craven.
Despite the adoptions, the couples expressed frustration that Maryland law still doesn't grant full legal recognition to their families. For instance, McCoy would have liked to be a stay-at-home mom during Jamie's toddler years, but they can't afford to lose her health insurance. McCoy and Dennis work for the Baltimore County Public Library system, which does not offer domestic partner benefits.
Moreover, while their legal ties to Jamie are clear, they can't make their own union legal in Maryland.
As McCoy read the inscription on their matching rings, she made clear that they "are not actual wedding bands."
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