Opening Another Exit from Child Welfare for Special Needs Children - Why Some Gay Men and Lesbians Should Have the Privilege to Adopt Children in Florida
![handle is hein.journals/stlr18 and id is 275 raw text is: OPENING ANOTHER EXIT FROM CHILD WELFARE
FOR SPECIAL NEEDS CHILDREN - WHY SOME
GAY MEN AND LESBIANS SHOULD HAVE THE
PRIVILEGE TO ADOPT CHILDREN IN FLORIDA
CYNTHIA R. MABRY*
Florida is one of a few states in the United States that has passed
legislation that expressly forbids same-sex adoption by individuals and/or
couples.1 The Florida statute provides that [n]o person eligible to adopt
under this statute may adopt if that person is a homosexual.2 In several of
the remaining forty-seven states and the District of Columbia, gay and
lesbian single individuals and unmarried couples may and do adopt
children.3 Sometimes, they adopt special needs children. Special needs
children are children who have psychological, emotional or physical
disabilities, serious illnesses such as HIV disease or AIDS, prenatal drug or
alcohol exposure, are older than four years old, are members of sibling
groups, or are children of color. Because these children have one or more
of these characteristics, it often is difficult to place them for adoption
without a lengthy stay in foster care.4
* Professor of Law, Howard University School of Law, JD. 1983; New York University
School of Law, LL.M., 1996.
1. See, e.g., FLA. STAT. ANN. § 63.042 (c) (3) (West 2005); MISS. CODE ANN. § 93-17-3 (2)
(2005); OKL. ST. ANN. tit.10 § 7502-1.4a; UTAH CODE ANN. § 78-30-1 (2005). Constitutional
issues regarding whether same sex individuals and couples should adopt children focus on the
prospective parent's rights. See generally Mark Strasser, Rebellion in the Eleventh Circuit: On
Lawrence, Lofton, and the Best Interests of Children, 40 TULSA L. REV. 421 (2005) (hereinafter
Strasser). Because this article is child-centered the constitutional arguments are beyond the scope
of this article.
2. FLA. STAT. ANN. § 63.042 (c) (3) (West 2005).
3. See, e.g., MD. FAM. L. § 5-345(b)(1) (2005 Supp.) (allowing any adult to petition a
court); N.Y. DOM. REL. LAW § 110 (Mckinney 2004); In re J.M.G., 632 A.2d 550, 553 (N.J.
1993) (acknowledging the Division of Youth and Family Services for the State of New Jersey's
unwritten policy of supporting same-sex adoption).
4. Judith K. McKenzie, Adoption of Children with Special Needs in the Future of Children,
at 62, 63 (1993); See also Cox v. Department of Health and Rehab. Servs., 656 So. 2d 902, 902-
03 (Fla. 1995) (describing special needs children as those that are hard to place); In the Interest of
Hart, 806 A.2d 1179, 1182 n.1 (Del. 2001); LAURA BEAUVAIS - GODWIN AND RAYMOND
GODWIN, THE COMPLETE ADOPTION BOOK 255 (2000) [hereinafter GODWIN AND GODWIN]
(reporting that most of these children have more than one of these characteristics); Joseph Evall,
Sexual Orientation and Adoptive Matching, 25 FAM. L. Q. 347, 365-66 (1991) (hereinafter
Evall); 42 U.S.C.A. § 673 (c) (2005) that similarly defines special needs children:
For purposes of this section, a child shall not be considered a child with special needs
unless-](ViewImageLocal?handle=hein.journals/stlr18&div=19&collection=&method=preview&ext=.png&size=3)
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