Utah judge takes baby from lesbian foster parents. Is that legal?

A Utah judge ruled for the removal of a foster baby from its lesbian parents because of the couple's sexual orientation. The couple's supporters, ranging from the baby's biological mother to Hillary Clinton, are calling the judge's ruling unjust. 

Rick Bowmer/AP/File
Members of the Mormons Building Bridges march in 2013 during the Utah Gay Pride Parade in Salt Lake City. Gay and lesbian Mormons and their supporters are reeling over a rule change by church officials that says members in same-sex marriages can be kicked out, and bars their children from being baptized unless they disavow same-sex relationships. The changes in the church handbook were sent out Thursday, Nov. 5, 2015, to local church leaders around the world.

April Hoagland and Beckie Peirce, a lesbian couple living in Carbon County, Utah, say the foster baby they have raised for the last three months will be removed from their home within the next seven days after a judge ruled the baby would be better off in a heterosexual home.

Both a court spokeswoman and Ashley Sumner, an agency spokeswoman for the Utah Division of Child and Family Services, have confirmed that Judge Scott Johansen’s order Tuesday was indeed decided on account of the couple’s sexual orientation. Judge Johansen did not provide specifics, but he claimed to have evidence that children do better in life with heterosexual parents as opposed to homosexual parents. 

We are shattered,” Ms. Hoagland told KUTV News in Salt Lake City. “It hurts me really badly because I haven’t done anything wrong.”

Even after last summer’s US Supreme Court ruling that made gay marriage legal across the country, state laws still govern adoption and foster care.

The ACLU website states:

Recognizing that lesbians and gay men can be good parents, the vast majority of states no longer deny custody or visitation to a person based on sexual orientation. State agencies and courts now apply a "best interest of the child" standard to decide these cases. Under this approach, a person's sexual orientation cannot be the basis for ending or limiting parent-child relationships unless it is demonstrated that it causes harm to a child -- a claim that has been routinely disproved by social science research. Using this standard, more than 22 states to date have allowed lesbians and gay men to adopt children either through state-run or private adoption agencies. 

... two states (Florida and New Hampshire) have laws that expressly bar lesbians and gay men from ever adopting children. In a notorious 1993 decision, a court in Virginia took away Sharon Bottoms' 2-year-old son simply because of her sexual orientation, and transferred custody to the boy's maternal grandmother. And Arkansas has just adopted a policy prohibiting lesbians, gay men, and those who live with them, from serving as foster parents. 

The couple feels Judge Johansen imposed his own religious beliefs in the ruling.

On Thursday, Gov. Gary Herbert told reporters that he is puzzled by the ruling, which child welfare officials said they are reviewing for a possible challenge.

"He may not like the law, but he should follow the law. We don't want to have activism on the bench in any way, shape or form," the governor said.

Herbert added that the judge should not "inject his own personal beliefs and feelings in superseding the law."

Hoagland and Ms. Peirce were approved as foster parents earlier this year after passing background checks and interviews with Utah’s Division of Child and Family Services (DCFS). 

“He’s never been in our home, never spent time with the child in our home or our other children so he doesn’t know anything about this,” Peirce told KUTV.

Both the foster child’s state-appointed attorney and the baby’s biological mother support the couple. Mandie Torgerson, the attorney for the baby’s biological mother, says her client is upset and plans to appeal the judge’s order because she wants her child to stay with her designated foster mothers.

Brent Platt, the Director of Utah’s DCFS, told KUTV he has not seen the judge’s order but his caseworkers must comply regardless. He says he will have his division’s attorneys took at the judge’s order to make sure there is legal reason to remove the child.

“If we feel like [Johansen’s] decision is not best for the child,” Mr. Platt told The Salt Lake City Tribune, “and we have a recourse to appeal or change it, we’re going to do that." 

The state has about 2,600 children now in foster care, and Platt says they need the help of all qualified and loving married couples.

“For us, it’s what’s best for the child,” he said. “Any loving couple if they are legally married, and meet the requirements, we want them to be involved.”

“We just want sharing, loving families for these kids,” Sumner told the Associated Press. “We don’t really care what that looks like.” 

“We have a lot of support,” Peirce told The Salt Lake Tribune. “DCFS wants us to have the child, the Guardian Ad Litem wants us to have the child, the mother wants us to have the child, so the only thing standing in the way is the judge.”

Democratic presidential candidate Hillary Clinton has also tweeted her support for the couple.

“Being a good parent has nothing to do with sexual orientation – thousands of families prove that,” she said.

Johansen has been in the news before for controversial rulings. In 1995, he was reprimanded for slapping a belligerent 16-year-old boy in the Price Courthouse and in 2014 he ordered a woman to cut off her daughter’s ponytail as punishment for cutting off the hair of a 3-year-old girl. Johansen offered to remove 150 hours of community service from the girl’s sentence if the mother agreed to cut her daughter’s ponytail in court. 

Material from the Associated Press was used in this story.

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