Judge rules state can’t deny foster care license
KANSAS CITY, Mo. The Missouri Department of Social Services improperly denied a woman’s application to become a foster parent because she is a lesbian, a judge ruled on Feb. 17.
The American Civil Liberties Union, acting on behalf of Lisa Johnston, had challenged the denial. Jackson County Circuit Judge Sandra C. Midkiff upheld the challenge after hearing testimony in November.
“This court finds that the respondents’ decision denying the foster care license to petitioner is unsupported by competent and substantial evidence upon the whole record,” Midkiff wrote in her 15-page ruling.
“This court also finds that the agency’s decision in denying the foster care license to petitioner is arbitrary and unreasonable,” the judge ruled.
“Ms. Johnston’s sexual orientation should not be the endpoint of the agency’s consideration of her application for a foster care license,” she said.
Johnston, 40, of Kansas City, had applied in 2003 to be a foster parent to a child she hoped to raise with her partner, Dawn Roginski. She had already started her training when her application was turned down under what the ACLU said was an unwritten policy against allowing gays and lesbians to become foster parents.
“We’re really relieved that the court has recognized that banning lesbian and gay people from being foster parents is bad for Missouri’s foster children,” Johnston said in an ACLU release announcing the judge’s decision. “We were saddened when we found out that our loving each other was the only reason the state had for denying us the opportunity to give a child a home.”
The Department of Social Services said it planned to appeal Midkiff’s ruling.
“The department will be asking the court for a stay of the decision while this case makes its way through the appeals process,” Deborah E. Scott, associate director, said in a written statement.
Social Services argued that a child raised by a same-sex couple might face social disapproval, a position that Midkiff said “is unsupported by competent and substantial evidence, and is arbitrary and capricious.”
The judge also noted that a state law banning sexual contact between people of the same gender is constitutionally unenforceable and that being a lesbian was not enough for the state to deny Johnston a license based on a lack of “reputable character.”
“To the contrary, the parties all agreed that but for “‘her sexual orientation,’ the applicant and her partner have exceptional qualifications to be foster parents,” Midkiff wrote.
Johnston holds a degree in human development and family from the University of Kansas, with an emphasis on child development.
Midkiff ordered the agency to resume training for Johnston and Roginski and to grant Johnston’s license if she passes.
Brett Shirk, executive director of the ACLU of Kansas and Western Missouri, said he was pleased by the ruling.
“I never try to make predictions about legal cases,” Shirk said, “but I got the idea while sitting through the hearing, as the arguments were being made, that the judge was not in agreement with the state’s case.”
This article appeared in the Dallas Voice print edition, February 24, 2006.