News in Brief: South Carolina, Standing, and Lesbian Foster Parents

There’s a recent South Carolina case that is worth some discussion I think.   Nancy Polikoff has a discussion of it on her most-excellent blog.  She makes many good points, so do go and have a look. 

In January, 2007 a child was born with cocaine in his system.   The child was immediately placed in protective custody.   The state placed him in foster care with a Michael and Lisa P, a married heterosexual couple.  A year later, the state asked if the P’s wished to adopt the child.   They said no. 

In February, 2008 the child was placed with Erin S.   Like the Ps, she had been approved by the state as a pre-adoptive foster parent.  Erin S. is a single 43-year-old lesbian.

When the Ps found out where the child had been placed they were apparently quite unhappy.  In June of 2008 they filed suit against the state, asserting that the state had told them that the child would be placed with a young married couple.  (In South Carolina, it would go without saying that such a couple would be heterosexual, as marriage between two people of the same-sex is not recognized.)    The Ps brought suit to adopt the child or regain custody of the child.   In the short run, they sought visitation.    

Erin S. intervened in the case.   She asserted that the Ps lacked standing.  The trial court agreed and in the new opinion, the appellate court affirms the trial court.  

Standing is a powerful legal doctrine that can play a decisive role in determining parental rights.    (I’m tempted to say that like all powerful tools, it can be used for good or for ill.)   A person must have standing to sue, so the lack of standing is fatal to any claim, as it is fatal to the Ps claim here.  

You have standing if you have some legally recognizable interest in the case.  (To offer a more obvious example, I might not like some law in South Carolina, but if it doesn’t affect me in any way, I cannot go to court to complain about it.  That’s because I lack the necessary interest and thus, lack standing.)   

In essence, when Erin S. raised standing, she asserted that the Ps had no legally recognized interest in the child.   The court had to consider whether they had the required interest by virtue of being former foster parents.  It found that they did not.   Foster parents have fewer rights that legal parents to begin with, and the Ps were not even current foster parents, they were former foster parents.     

I’d like to try to step back from the result in the case (which I frankly like) and consider the reasoning a little more carefully.   Standing is a doctrine which frequently frustrates the efforts of lesbian mothers to gain access to their children.    

This does not mean it is a bad doctrine, per se, of course.  But it’s invocation to protect a lesbian (foster, but perhaps destined to be adoptive) mother is notable. 

That said, I think standing does belong here.  Standing is what protects people raising children (parents and foster parents) from interference by others.  Thus, if my neighbors do not like what I’m doing with my kids and go to court to seek some adjustment, I will be protected by a finding that they lack standing and therefore I do not even have to get to the issue of the choices I am making.  

So here, Erin S. is a lawfully recognized foster mother who is entitled to invoke the doctrine to protect her family from unwarranted interference. 

Perhaps the most critical point in the case is that the Ps decided not to adopt this child.   Once they did that, the state was right to seek a new home that would hopefully lead to an adoption, and this terminated the Ps service as foster parents.   The Ps apparently regretted their decision, but that ought not to give them rights.

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