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Same-Sex Status Not Deterrent to Foster Custody

Although petitioners, a committed lesbian couple, served as outstanding foster parents until recent events, the Wise County Circuit Court cannot disregard the recent founded complaint of abuse and two criminal charges arising from one petitioner’s corporal punishment of her partner’s eight-year-old son, and the court finds it’s in the best interests for the child to remain with her current foster family, who wants to adopt her.

Petitioners have been providing foster care for a minor child who is in the custody of the Wise County Department of Social Services. Both biological parents have relinquished custody of the child. Things proceeded well until May 12, 2011, when the Big Stone Gap Police Department received a complaint against petitioner Welch, who is the foster parent under the agreement with DSS. Four days later, charges were filed against petitioner Welch, alleging violation of Va. Code § 18.2-371 stemming from an incident involving Welch’s use of corporal punishment on co-petitioner Mays’ biological son, who was eight years old at the time. DSS initiated an investigation and removed the foster child from the home. An investigation yielded a founded complaint by DSS.

Petitioners claim the criminal charges against Welch resulted in a guilty finding, and the case was appealed to circuit court. Petitioners claimed the circuit court took the case under advisement (presumably pursuant to the statutory authority in § 18.2-57.3) and the case would be dismissed if Welch complied with certain conditions. However, no order was entered to that effect. The case remains pending on the court’s docket for trial.

The court finds both petitioners have standing under Virginia law. The court has given due consideration to the abundance of evidence presented at trial regarding the age, physical and mental condition of the child, giving due consideration to the child’s developmental needs. Two clinical psychologists presented testimony regarding Reactive Attachment Disorder, and there is no doubt that the abrupt removal of the child from the care of petitioners presents a situation that could have lasting developmental consequences. But the court finds there is a substantial risk that yet another removal would exacerbate rather than mitigate any developmental damage. The current foster family wishes to proceed with adoption. Although it appears petitioners were once on track to be allowed to adopt this child, that is no longer the case.

There are certain factors petitioners can’t escape. There is currently a founded complaint against Welch. That complaint was administratively appealed within DSS, but the current status of the case is there is a founded complaint. As to the currently active criminal charges, there has to be a finding there was evidence sufficient to establish the defendant’s guilt in order to take the case under advisement, and that finding cannot be ignored.

Even giving Mays’ petition independent consideration, she is asking the court to place the child in a home where there has been a founded complaint against one of the supervising parents, in addition to two active criminal charges. The court declines to do so.

Under Va. Code § 20-124.3, the court is permitted to consider such other factors as the court deems necessary and proper to the determination of the best interests of the child. Respondent contends one of the other “factors” the court should consider is petitioners’ homosexual relationship, which respondent argues makes them “not morally fit” as parents. The court rejects this argument. The court cannot assume there are adverse effects on a child because of a parent’s homosexuality, without specific proof. Here, the evidence  before the court was that petitioners were, for almost the entire time the child, outstanding foster parents. If the homosexuality of petitioners were the only consideration at issue, DSS would lose this case and it wouldn’t be a close call. The court rejects this argument as a ground for determination of custody.

Welch v. Wise County Dep’t of Social Servs. (Dotson) No. CJ12-05, Wise County Cir.Ct.; Timothy W. McAfee for petitioners; Berlin Skeen for DSS. VLW 012-8-031, 9 pp.

VLW 012-8-031

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