May 01, 2011

Banning Cohabiting/Unmarried Couples from Fostering and Adopting is Unconstitutional

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Arkansas Dep’t of Human Servs. v. Cole, 2011 WL 1319217 (Ark.).

The Supreme Court of Arkansas upheld a lower court ruling that Arkansas’ Act 1 is unconstitutional. The court found that by banning people who cohabit with sexual partners from fostering or adopting a child, Act 1 penalizes these couples and infringes on their right to privacy. Further, it denies these couples the same consideration as married couples when determining suitable placements and best interests of children.

On January 1, 2009, Arkansas’ Adoption and Foster Care Act of 2008 (Act 1), codified at Arkansas Code Annotated sections 9-8-301 to 305, went into effect. This ballot initiative prohibited an individual “cohabiting with a sexual partner outside of marriage that is valid under the Arkansas Constitution and the laws of this state” from adopting or serving as a foster parent. The prohibition “applies equally to cohabiting opposite-sex and same-sex individuals.”

A group of unmarried adults who wanted to foster or adopt children in Arkansas, adult parents who wished to direct the adoption of their biological children in the event of their incapacitation or death, and the biological children of those parents filed suit against the state, Attorney General, Department of Human Services and its director, and the Child Welfare Agency Review Board.

On April 16, 2010, the circuit court granted plaintiffs’ motion for summary judgment and “declared Act 1 unconstitutional under the Arkansas Constitution.” The court found that Act 1 “significantly burdens nonmarital relationships and acts of sexual intimacy between adults because it forces them to choose between becoming a parent and having any meaningful intimate relationship outside of marriage. This infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas.”

Because the lower court found a fundamental right, the court applied the strict scrutiny standard and required the state to apply the least-restrictive, narrowly tailored method to address their compelling interest, and determine what is in the child’s best interest. The court found that Act 1 applied a categorical ban on all cohabiting couples engaged in sexual conduct and therefore failed to meet this test. It also found “Act 1 is facially invalid because it casts an unreasonably broad net over more people than is needed to serve the State’s compelling interests.” The state and the Family Council Action Committee, sponsor of Act 1 and intervenor in this action, appealed.

The Supreme Court of Arkansas affirmed the circuit court opinion finding:

…a fundamental right to privacy is at issue in this case and that, under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes. We further hold that this right is jeopardized by Act 1 which precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care.

In previous cases, the Supreme Court of Arkansas found no right to privacy enumerated in the Arkansas Constitution, however, the court, in those cases, found public policy and tradition supporting a right to privacy as well as an implicit right in the Arkansas Constitution. See Jegley v. Picado 349 Ark. at 627. This implicit right “protects all private, consensual, non commercial acts of sexual intimacy between adult.” Id. In this case, Act 1 prohibits adoption and foster parenting by people who cohabit with a sexual partner. Therefore, the Act infringes upon a fundamental right to privacy. The prohibition “penalizes those couples who cohabit and engage in sexual relations by foreclosing their eligibility to have children, either through adoption or by means of foster care.”

The court explained that the agency weighs many factors when placing a child in a foster or adoptive home. This decision does not prohibit an agency from taking cohabitation into account when considering the totality of circumstances and making a best interest determination. “Act 1’s blanket ban provides for no such individualized consideration or case-by-case analysis in adoption or foster-care cases and makes the bald assumption that in all cases where adoption for foster care is the issue it is always against the best interest of the child to be placed in a home where an individual is cohabiting with a sexual partner outside of marriage.”

As an aside, the court noted that several witnesses for the state and FCAC, as well as counsel, admitted that not only are some adults that fall under Act 1 suitable foster and adoptive parents, but that a categorical ban is not in children’s best interests. One witness said, “Act 1 is not consistent with the best practices because it bars placement of children with relatives who are cohabiting with a sexual partner.” Another in her deposition stated that “she could not identify any child welfare interests that are furthered by categorically excluding unmarried couples from being assessed on an individual basis as to whether they would be suitable adoptive parents.” Finally the director of DHS stated, “it is not in the best interest of children to have a categorical ban on any cohabiting couple from fostering or adopting children because the case workers should have as much discretion as possible to make the best placement.”

The court concluded by acknowledging the state’s compelling interest to protect the welfare of children and held that Act 1 fails to comply with the heightened scrutiny analysis and the least-restrictive means for serving that interest.