FLORIDA DEPARTMENT OF CHILDREN

• Decision Date: 22 September 2010
• Docket Number: No. 3D08-3044.,3D08-3044.
• Citation: 45 So.3d 79
• Parties: FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. In re Matter of ADOPTION OF X.X.G. and N.R.G., Appellees.
• Court: Florida District Court of Appeals

45 So.3d 79

FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellant,

v.In re Matter of ADOPTION OF X.X.G. and N.R.G., Appellees.

No. 3D08-3044.

District Court of Appeal of Florida,Third District.

Sept. 22, 2010.

Bill McCollum, Attorney General, and Scott D. Makar, Solicitor General, and Timothy D. Osterhaus, Deputy Solicitor General, for appellant.

Charles M. Auslander, The Children's Trust; Greenberg Traurig and Hilarie Bass and Elliot H. Scherker and Brigid F. Cech Samole and Ricardo Gonzalez and Elaine D. Walter, Miami; Robert F. Rosenwald, Jr., and Shelbi D. Day, American Civil Liberties Union; Leslie Cooper; Hillary Kambour, Guardian Ad Litem Program, for appellees.

Mary E. McAlister; Mathew D. Staver and Anita L. Staver, Orlando, for Liberty Counsel, as amicus curiae.

Benjamin W. Bull, Brian W. Raum, Byron J. Babione, Alliance Defense Fund; Buckley & Fudge and Rebecca O'Dell Townsend, St. Petersburg, for the American College of Pediatricians, as amicus curiae.

Cynthia L. Greene, Miami; Luis E. Insignares, Fort Myers; Scott L. Rubin, Miami, for the Family Law Section of The Florida Bar, as amicus curiae.

H. Collins Forman, Jr.; John T. Stemberger, Orlando, for Perry W. Hodges, Jr., Esquire, Dissenting Member of the Family Law Section of The Florida Bar, as amicus curiae.

Jenner & Block and William M. Hohengarten; Nathalie F.P. Gilfoyle; Carlton Fields and John R. Blue, St. Petersburg, and Sylvia H. Walbolt and Joseph Hagedorn Lang, Jr., and Nancy J. Faggianelli, Tampa, for the American Psychological Association, as amicus curiae.

Paolo G. Annino and Chelsea Boehme Rice and Talbot D'Alemberte, for Talbot D'Alemberte and the Public Interest Law Center at FSU College of Law; Florida International University Juvenile Justice Clinic, Professor Phyllis Williams Kotey, Professor Margaret Maisel, Professor Troy Elder and Dr. Amy D. Ronner, as amici curiae.

Ross & Girten and Lauri Waldman Ross and Theresa L. Girten, Miami; Wilmer Cutler Pickering Hale and Dorr and Elizabeth L. Mitchell and Benjamin Brown and Katherine Halliday; Professor Joan Heifetz Hollinger, for The Center for Adoption Policy; The Child Welfare League of America; The Florida Chapter of the American Academy of Pediatrics; The Foster Care Alumni of America; The Foster Children's Project of the Legal Aid Society of Palm Beach County; The National Association of Social Workers (“NASW”) and The Florida Chapter of the NASW; The National Center for Adoption Law and Policy; The National Center for

Youth Law; The North American Council on Adoptable Children, as amici curiae.

Karl Johansson, in proper person, for the Christian Coalition of South Florida, as amicus curiae.

Joseph S. Jackson, for The University of Florida Fredric G. Levin College of Law Center on Children and Families; The University of Miami School of Law Children and Youth Law Clinic; The Nova Southeastern University Law Center Children and Families Clinic; The Barry University School of Law Children and Families Clinic; Professor Barbara Bennett Woodhouse, Professor Michael J. Dale, Professor Timothy Arcaro, Professor Brion Blackwelder and Professor Gerard F. Glynn, as amici curiae.

Robin L. Rosenberg, West Palm Beach; Peterson & Myers and Stephen R. Senn, Lakeland, for The Florida's Children First, Inc., as amicus curiae.

Baker & McKenzie and Robert F. Kohlman and Angela Vigil and Robert H. Moore, Miami, and Megan Renza, for Child Advocacy Clinic at Hofstra School of Law; Children and Family Justice Center of the Bluhm Legal Clinic of Northwestern University School of Law; Civitas Child Law Center; Loyola Chicago School of Law; Evan B. Donaldson Adoption Institute; Justice for Children Project; Ohio State University School of Law; Juvenile Law Center; Children's Law Center of Minnesota; Lawyers for Children America; Rocky Mountain Children's Law Center; Southern Poverty Law Center; Support Center for Child Advocates, as amici curiae.

Brinkley, Morgan, Solomon, Tatum, Stanley & Lunny, for The Florida Chapter of the American Academy of Matrimonial Lawyers, as amicus curiae.

Before COPE, SHEPHERD and SALTER, JJ.

COPE, J.

This is an appeal of a final judgment of adoption, under which F.G. became the adoptive father of two boys, X.X.G. and N.R.G. (collectively, “the children”). The trial court found, and all parties agree, that F.G. is a fit parent and that the adoption is in the best interest of the children.

The question in the case is whether the adoption should have been denied because F.G. is a homosexual. Under Florida law, a homosexual person is allowed to be a foster parent. F.G. has successfully served as a foster parent for the children since 2004. However, Florida law states, “No person eligible to adopt under this statute [the Florida Adoption Act] may adopt if that person is a homosexual.” § 63.042(3), Fla. Stat. (2006). According to the judgment, “Florida is the only remaining state to expressly ban all gay adoptions without exception.” Judgment at 38. Judge Cindy Lederman, after lengthy hearings, concluded that there is no rational basis for the statute. We agree and affirm the final judgment of adoption. ^{1 , 2}

I.

We begin with three observations. First, there does not appear to be any disagreement between the parties regarding the facts of the case. The parties entered into a lengthy list of stipulated facts. The stipulated facts are attached as an appendix to this opinion. Second, the parties agree that the father is a fit parent and that the adoption is in the best interest of the children. Appendix ¶¶ 44-56. Third, the Department of Children and Families [“Department”] “agrees that gay people and heterosexuals make equally good parents.” Appendix ¶ 31.

II.

Turning now to the facts of this case, in 2004 the Department removed X.X.G., then four years old, and N.R.G., then four months old, from their home based on allegations of abandonment and neglect. The Department contacted F.G., a licensed foster caregiver, and asked him to accept the children on a temporary basis until a more permanent placement could be found. ³

The children arrived with medical problems and other needs. X.X.G. arrived wearing a dirty adult-sized t-shirt and sneakers four sizes too small. Both children were suffering from ringworm and the four-month-old suffered from an untreated ear infection. X.X.G., the four-year-old, did not speak and his main concern was changing, feeding and caring for his baby brother.

The children thrived in F.G.'s household. “It is clear to this Court that [F.G.] is an exceptional parent to [X.X.G. and N.R.G.] who have healed in his care and are now thriving.” Final Judgment at 37.

Because of the natural parents' neglect of the two children, the Department filed a petition for termination of the natural parents' parental rights. In 2006, that petition was granted and the natural parents' parental rights were terminated. X.X.G. and N.R.G. became available for adoption.

F.G. applied to adopt the children. The Center for Family and Child Enrichment, Inc. (“The Family Center”), a private nonprofit corporation, had been monitoring the two boys during foster care and was assigned the duty of evaluating F.G.'s ability to provide a satisfactory adoptive placement. ⁴ The Family Center reported that F.G.'s home presented a suitable environment and that he met all the criteria required to adopt the two boys. The parties stipulated that F.G. provides a safe, healthy, stable and nurturing home for the children meeting their physical, emotional, social and educational needs. The Family Center recommended against the application, though, because F.G. is a homosexual and is prohibited from adopting children under subsection 63.042(3), Florida Statutes. The Department denied the application on that basis. The Department acknowledged that it would have approved the application if it had not been for the statute.

In 2007, F.G. filed a petition in the circuit court to adopt the children. F.G. asked the court to find subsection 63.042(3) unconstitutional because it violates his rights to equal protection, privacy, and due process. Independent counsel acting on behalf of the children asserted that the children's rights to equal protection and due process had also been violated. The Department filed a motion to dismiss, but the court only dismissed the privacy claim.

Trial began on October 1, 2008, and continued for four days. F.G. presented fact witnesses as well as expert witnesses who testified regarding homosexual and heterosexual parenting capabilities. In opposition, the Department offered the testimony of two expert witnesses.

The trial court rendered a 53-page judgment declaring subsection 63.042(3) unconstitutional and granting the petition for adoption. The trial court found, among other things, that the statute violates the equal protection rights of F.G. and the children that are guaranteed by Article I, Section 2 of the Florida Constitution.

The Department has appealed.

III.

The Department contends that the trial court erred by finding subsection 63.042(3) unconstitutional. The Department argues that there is a rational basis for the statute and that the trial court misinterpreted the law.

Under the Florida Constitution, each individual person has a right to equal protection of the laws. The constitutional provision states, in part:

SECTION 2. Basic rights.-All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property....

Art. I, § 2, Fla. Const.

F.G. successfully argued in the trial court that the statute treated him unequally in violation of the constitutional provision because the statute creates an absolute prohibition on adoption by homosexual persons, while allowing all other persons-including those with criminal histories or histories of substance abuse-to be...