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 Utah Children v. Utah Division of Child and Family Services

 STEPHEN C. CLARK (# 4551)
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862

LAURA MILLIKEN GRAY (#5960)
257 East 200 South, #340
Salt Lake City, Utah 84111
(801) 532-7282

JENNIFER MIDDLETON
MICHAEL ADAMS
MATTHEW COLES
American Civil Liberties Union Foundation, Inc.
125 Broad Street
New York, New York 10004
Telephone: (212) 549-2650

KATHRYN D. KENDELL (#5398)
SHANNON MINTER
National Center for Lesbian Rights, Inc.
870 Market Street, Suite 570
San Francisco, California 94102
Telephone: (415) 392-6257

Attorneys for Intervening Plaintiffs

IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH

COMPLAINT IN INTERVENTION

Civil No. 990910881
Judge Glenn Iwasaki

UTAH CHILDREN, Plaintiff, COLLEEN SANDOR, and STEVEN LAZARUS and MICHAEL SPLITT, Intervening Plaintiffs,

v.

UTAH STATE DIVISION OF CHILD AND FAMILY SERVICES; BOARD OF CHILD AND FAMILY SERVICES; SCOTT CLARK; KEVIN PACKER; BECKY OAKLEY; ELAINE PLATT; ANNIE MASON; JIM ANDERSON; and GLADYS HALE, Defendants.

Intervening plaintiffs, by and through their attorneys of record, hereby allege and complain as follows:

NATURE OF ACTION

1. This is a challenge to Rule 512-41-4(A)(3) of the Utah Administrative Code (the "Rule"), which was recently approved and promulgated by defendants. The Rule prohibits anyone with an unrelated adult sharing his or her home from adopting a child in state custody. The rule violates the equal protection clause of the Utah Constitution, Art. I § 24, and the Utah Administrative Rulemaking Act, Utah Code Ann. §§ 63-46a-1 to -16 (1997 and Supp. 1999), because: (a) it is grounded in irrational fear and prejudice toward same-sex couples and certain unmarried individuals, including plaintiffs, who wish to welcome children in need of adoption into their homes, and therefore unfairly and unconstitutionally discriminates against people regardless of their qualifications to serve as adoptive parents; (b) defendants did not have legal authority to make the Rule; and (c) the Rule is not supported by substantial evidence when viewed in light of the whole administrative record. Intervening plaintiffs seek a declaration that the Rule is invalid and an injunction against defendants’ application or enforcement of the Rule.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this matter, and venue is proper in this Court, pursuant to Utah Code Ann. § 63-46a-12.1(1)(a) (1997).

PARTIES

3. Plaintiff Colleen Sandor is a citizen of the State of Utah residing in Salt Lake County. Colleen is a licensed psychologist who works as the program coordinator for an adult substance abuse treatment team at a private non-profit agency. She has been involved with the Utah AIDS Foundation and serves on the Board of Directors of the American Civil Liberties Union of Utah. She currently is in a committed relationship of over 8 years duration with an adult to whom she is not married. They share a residence. She wishes to preserve her eligibility to be considered on a fair and equal basis as a potential adoptive parent for a child in state custody.

4. Plaintiffs Steven Lazarus and Michael Splitt are citizens of the State of Utah residing in Salt Lake County. They are both meteorologists at the University of Utah. They have lived together in a committed relationship for over 12 years. They have mentored youths in need of adult guidance. They wish to preserve their eligibility to be considered on a fair and equal basis as potential adoptive parents for a child in state custody.

5. Defendant Utah State Division of Child and Family Services (the "Agency") is a division within the Utah Department of Human Services, which has policymaking functions, regulatory and enforcement powers, rights, duties, and responsibilities, including rulemaking authority, as outlined in the Utah Human Services Code, Utah Code Ann. § 62A-4a-101 to -709 (1997 and Supp. 1999). The Agency’s primary responsibilities include:

(1) "administer[ing] services to children and families, . . .

(6) promot[ing] and enforc[ing] state and federal laws enacted for the protection of abused, neglected, dependent, delinquent, ungovernable and runaway children, . . .

(18) ensur[ing] regular, periodic publication . . . regarding the number of children in the custody [of the Agency] who have a permanency goal of adoption, . . . and promot[ing] adoption of those children.

Utah Code Ann. § 62A-4a-105 (Supp. 1999). With regard to the adoption of children in state custody, the Agency is responsible for "verify[ing] the allegation of the petition for adoption . . ., mak[ing] a thorough investigation of the matter and report[ing] its findings in writing to the court." Id. § 78-30-14(1) (1996). In addition, the Agency must certify the form of home study conducted as part of a comprehensive study required of the potential adoptive home prior to adoption placement. See id. § 78-30-3.5(2)(c). The Agency’s mailing address is 120 North 200 West, Salt Lake City, Utah 84103.

6. Defendant Utah State Board of Child and Family Services (the "Board") is a policymaking board within the Department of Human Services charged with the responsibility of "establishing the policy of the [Agency]." Id. § 62A-4a-102(1)(a) (Supp. 1999). The Board "is responsible to see that the legislative purposes for the [Agency] are carried out." Id. The Board’s duties include "establish[ing] policies for the determination of eligibility for services offered by the [Agency]. . . ." Id. § 62A-4a-102(6). There are eleven members of the Board. See id. § 62A-4a-102(b)(i). Seven of the nine members of the Board who attended the Board’s January 22, 1999 meeting voted to approve the Rule. The Board’s mailing address is 120 North 200 West, Second Floor, Salt Lake City, Utah 84103.

7. Defendant Scott H. Clark is the Chairman of the Board. As a member of the Board, defendant Clark voted to approve the Rule. He is sued in his official capacity. His mailing address is 2360 Royal Lane, Sandy, Utah 84093.

8. Defendant Kevin Packer is a member of the Board. As a member of the Board, defendant Packer voted to approve the Rule. He is sued in his official capacity. His mailing address is 144 South 100 West, Brigham City, Utah 84302.

9. Defendant Becky Oakley is a member of the Board. As a member of the Board, defendant Oakley voted to approve the Rule. She is sued in her official capacity. Her mailing address is 1465 Osprey Way, Eagle Mountain, Utah 84043.

10. Defendant Elaine Platt is a member of the Board. As a member of the Board, defendant Platt voted to approve the Rule. She is sued in her official capacity. Her mailing address is 392 North 900 East, Bountiful, Utah 84010.

11. Defendant Annie H. Mason is a member of the Board. As a member of the Board, defendant Mason voted to approve the Rule. She is sued in her official capacity. Her mailing address is 718 East 1400 North, Ogden, Utah 84404.

12. Defendant James L. Anderson is a member of the Board. As a member of the Board, defendant Anderson voted to approve the Rule. He is sued in his official capacity. His mailing address is 2101 South 1150 East, Bountiful, Utah 84010.

13. Defendant Gladys G. Hale is a member of the Board. As a member of the Board, defendant Hale voted to approve the Rule. She is sued in her official capacity. Her mailing address is 6126 South Dee Park Drive, Salt Lake City, Utah 84118.

FACTUAL ALLEGATIONS IN SUPPORT OF CLAIMS

14. On or about January 22, 1999, the Board met at a regularly scheduled meeting to discuss, among other items, a proposal by defendant Clark to approve a policy for restricting the pool of potential adoptive families and the placement of children in the custody of the Agency with those adoptive families. The proposed policy provided, in pertinent part:

An adoption assessment must be consistent with the standards of the Child Welfare League of America . . . and must include the following:

a verification that adults present in the home are legally related to parent(s) by blood or adoption or legal marriage. . . .

15. After public comment and discussion by the Board at the January 22, 1999 meeting, each of the individual defendants voted in favor of defendant Clark’s proposed policy, and it was approved by a vote of 7 to 2.

16. On or about June 1, 1999, relying on Utah Code Ann. §§ 62A-41-105 and 62A-4a-205.6, the Agency published a proposed rule embodying the policy referred to above in the June 1, 1999, issue of the Utah State Bulletin, Vol. 99, No. 11, pages 39-42. After publication of the proposed rule, there was a statutorily-required 30-day period for the public to submit written comments on the Rule.

17. During the 30-day comment period following publication of the proposed rule, the Agency received at least 20 written comments opposing the proposed rule.

18. The Child Welfare League of America ("CWLA"), which is "the oldest and largest organization in the United States that establishes standards for child welfare practice, including adoption," submitted written comments opposing the proposed rule. The CWLA pointed out that, unlike the proposed rule, its standards provide:

All applicants should have an equal opportunity to apply for the adoption of children, and receive fair and equal treatment and consideration of their qualifications as adoptive parents, under applicable law.

Applicants should be fairly assessed on their abilities to successfully parent a child needing family membership and not on their appearance, differing life style, or sexual preference.

Sexual preference should not be the sole criteria [sic] on which the suitability of adoptive applicants is based. Consideration should be given to other personality and maturity factors and on the ability of the applicant to meet the specific needs of the individual child.

In its comments, the CWLA urged that the verification requirement be dropped from the proposed rule or that, at a minimum, the "inaccurate reference" to the Agency’s compliance with CWLA’s standards be deleted.

19. After the end of the 30-day statutory comment period, the Agency provided the Board with a list of the groups and individuals that had commented on the proposed rule, noting that "[a]ll comments received opposed" the proposed rule. Beyond this, the Agency did not respond to or analyze the public comments received.

20. On information and belief, after the public comment period, defendant Clark declined to have the Board consider the evidence referred to and contained in the comments received in opposition to the proposed rule. Instead, without any public comments supporting the proposed rule, and without any response to or analysis of the comments received, the Board voted at its August 27, 1999, meeting to have the Rule take effect no later than September 1, 1999. At this meeting, the Board also took note of the CWLA’s opposition, discussed the fact that the proposed rule would be out of step with "best practices" as defined by CWLA, and voted to amend the proposed rule to delete the "inaccurate reference" to the Agency’s compliance with CWLA standards.

FIRST CAUSE OF ACTION

(For Defendants’ Violation Article 1, Section 24 of the Utah Constitution)

21. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 20 of this Complaint as if fully set forth herein.

22. As described in this Complaint, defendants have violated the rights of plaintiffs and others similarly situated under the Utah Constitution by prohibiting them from consideration as adoptive parents through a vague, arbitrary and discriminatory restriction on their eligibility to be considered to adopt children in state custody. At the same time, defendants allow individuals not living with other unrelated adults, including single adults, to adopt children without this blanket prohibition. There is no rational basis for such a prohibition.

23. Pursuant to the Utah Administrative Rulemaking Act, plaintiffs are entitled to a declaration that the Rule is invalid on its face, and to injunctive relief prohibiting defendants from purporting to approve and maintain vague, arbitrary and discriminatory rules that interfere with plaintiffs’ rights.

SECOND CAUSE OF ACTION

(For Defendants’ Violation of Utah Statutory Law and the Utah Administrative Rulemaking Act)

24. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 23 of this Complaint as if fully set forth herein.

25. Plaintiffs are "persons" within the meaning of Utah Code Ann. § 63-46a-2(12) (1997), and "persons aggrieved by the Rule" within the meaning of Utah Code Ann. § 63-46a-12.1(1)(a) (1997).

26. In addition to violating constitutional law, the Rule also violates statutory law, and defendants lacked legal authority to make the Rule. Utah law authorizes adoption of any minor child by any adult person, subject only to a determination of whether the child’s placement in a particular home is in "the best interest of the child." Utah Code Ann. § 78-30-1.5 (1996). While Utah law governing adoptions enumerates in some detail the required elements of a home study, see id. §§ 78-30-3.5 and -14, it requires only that certain information be provided, not that anyone be categorically excluded on the basis of that information. See id. Indeed, the Utah legislature has provided that the Agency has an affirmative obligation to promote adoption. See id. § 62A-4a-607 (Supp. 1999).

27. Nothing in Utah law or the administrative rules authorizes the Board to approve a policy, or the Agency to promulgate a rule, imposing a categorical exclusion of persons, such as plaintiffs, who live with other unrelated adults from the pool of potential adoptive parents. In fact, the Agency has authority to "establish eligibility standards for its programs" but only insofar as they are "not inconsistent with state . . . law or regulations." Id. § 62A-1-111(5) (Supp. 1999) (emphasis added). The Rule is inconsistent with state laws and regulations which require that the best interests of the child be the governing standard and mandate that no single factor may be determinative in qualifying potential adoptive parents.

28. Pursuant to Utah Code Ann. § 63-46a-12.1(4)(a)(i), plaintiffs are entitled to a declaration that the Rule is invalid in that it violates Utah statutory law, and in that the Agency did not have legal authority to promulgate the Rule and the Board did not have legal authority to approve the Rule.

29. Pursuant to Utah Code Ann. § 63-46a-12.1(4)(e), plaintiffs are entitled to injunctive relief enjoining the Board from illegally approving rules and the Agency from illegally promulgating and enforcing rules inconsistent with Utah state law and beyond the scope of their authority.

THIRD CAUSE OF ACTION

(For Defendants’ Promulgating the Rule Without Substantial Evidence in Violation of the Utah Administrative Rulemaking Act)

30. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 29 of this Complaint as if fully set forth herein.

31. The proposed rule and analysis, the Agency’s response to and analysis of the public comment, and the Agency’s report of its decision-making process – the administrative record as defined in Utah Code Ann. § 63-46a-2(1) – do not contain substantial evidence in support of the Rule.

32. Pursuant to Utah Code Ann. § 63-46a-12(4)(a)(ii), plaintiffs are entitled to a declaration that the Rule is invalid in that it is not supported by substantial evidence when viewed in light of the whole administrative record.

33. Pursuant to Utah Code Ann. § 63-46a-12(4)(e), plaintiffs are entitled to injunctive relief enjoining defendants from illegally approving or promulgating rules without substantial evidence in violation of the Utah Administrative Rulemaking Act.

WHEREFORE, plaintiffs demand the following relief:

1. That the Court declare the Rule invalid pursuant to Utah Code Ann. § 63-46a-12(4)(a);

2. That the Court issue an injunction to enjoin defendants from applying or enforcing the Rule and from purporting to approve a similar illegal restriction in the future;

3. That the Court award plaintiffs their costs and fees reasonably incurred in this action; and

4. That the Court grant such other and further relief as it deems proper in the circumstances.

DATED: November 30th, 1999.

By Stephen C. Clark
ACLU of Utah Foundation, Inc.
Attorney for Plaintiffs

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