Judge's rebuke of DCF adds to same-sex couples' claims of discrimination

In multiple cases, state officials have removed children from gay couples in favor of heterosexual parents

By Luke Ranker and Jonathan Shorman

luke.ranker@cjonline.com jonathan.shorman@cjonline.com

A Johnson County District Court judge chastised the Kansas Department for Children and Families for discriminating against a lesbian couple who wanted to adopt, a court ruling shows, an official finding that echoes claims of unequal treatment from other couples.

In a scathing 2013 decision, Judge Kathleen Sloan removed a then 2-year-old boy from state custody after finding DCF had gone to extraordinary measures to create a case against a lesbian woman who wanted to adopt the foster child she had cared for since birth.

The ruling is perhaps the most significant evidence yet suggesting DCF officials, under the direction of Secretary Phyllis Gilmore, have positioned “concerns for the ‘gay/lesbian’ classification” above the well-being of children in order to block same-sex couples from adopting or fostering. Additionally, three couples, including Lisa and Tesa Hines of Wichita, have told The Topeka Capital-Journal they believe DCF discriminated against them in adoption cases because of their sexual orientations.

The accusations came to light after Topeka City Councilman Jonathan Schumm and his wife, Allison Schumm, were arrested on charges of child abuse Nov. 19. The Schumms last year won custody of a child the Hineses wanted to adopt after raising her the first 11 months of her life.

Sloan’s sealed ruling only recently surfaced. On Thursday, DCF said it doesn’t have a policy differentiating treatment of heterosexual and same-sex couples.

Critical ruling

Sloan found in her ruling that DCF officials ignored a child’s best interest when they chose in 2012 to remove a boy from the care of a lesbian foster mother who lived in Johnson County who had cared for the child since birth, and instead placed him with a heterosexual couple who repeatedly told social workers they were uninterested in adopting the child.

In the 37-page document, Sloan pointed to emails exchanged between DCF officials, including Gilmore. Those emails showed an effort by officials to find evidence against a same-sex couple while simultaneously pressuring a second family to consider adopting the infant, Sloan wrote.

DCF placed “concerns for the ‘gay/lesbian’ classification above concerns for (the child’s) best interest,” Sloan wrote.

“Not once, in all of the emails admitted into evidence over the course of the two days of trial, was there any discussion of what was in the best interest (of the child),” she wrote. “Not once.”

Originally DCF wouldn’t consent to allowing the adoption because one member of the relationship was accused of welfare fraud, but the court didn’t believe that to be sufficient cause. Sloan cited another case in which a heterosexual woman was granted consent for adoption despite being “addicted to methamphetamines for ten years” and convictions of assault, battery, theft, forgery and other charges.

The judge pressed Michael Myers, who at the time was regional director for DCF and is now prevention and protection services director, about why that adoption was allowed and the same-sex couple’s was not. Myers said he was unfamiliar with that case. However, research into the case showed Myers signed off on allowing the woman to adopt, despite her criminal convictions, the judge wrote.

When asked whether DCF and its officials have had either a practice or policy to treat gays and lesbians differently, spokeswoman Theresa Freed said in a statement: “DCF does not have a policy regarding same-sex couples.”

Freed said the agency couldn’t comment on specific cases. Calls placed to numbers listed for the couple involved in the Johnson County case weren’t returned.

During the 2012 investigation cited in Sloan’s ruling, DCF officials spurred the Kansas Department of Health and Environment into inspecting the home of the lesbian couple. Inspectors found chemicals and medicine stored in unlocked containers and clutter.

At one point, emails were exchanged between DCF workers, including Gilmore, claiming guns and drugs were stored in the home, but after the home visit, KDHE investigators didn’t cite weapons as a violation.

At least one KDHE official argued the violations weren’t enough to merit removing the child or revoking the couple’s foster care license, but DCF did so. Though DCF officials denied in court that the decision to remove the child was related to the couple’s sexual orientation, Sloan found “clear and compelling” evidence to the contrary.

“They wanted to remove him,” she wrote. “They intended to remove him. They chose to remove him. They did the bidding of the Secretary of the DCF who, while she was not in the home, was deeply involved in directing the course of the case.”

Questions over DCF’s treatment of gay and lesbian foster and adoptive parents come as Gov. Sam Brownback and his administration have mounted an aggressive push over the past year to address family issues.

The governor’s second inaugural address in January decried what Brownback described as a “crisis of the family.”

Then, in February, Brownback rescinded an executive order from Gov. Kathleen Sebelius’ administration protecting gay and lesbian state workers from discrimination. At the time, Brownback said his move ensured all state employees enjoyed the same civil rights as all Kansans without creating additional protected classes.

In July, Brownback signed an executive order he argued was needed to protect religious liberty, but critics said the order could allow state contractors to deny services to same-sex couples.

But within the foster care and adoption community, a January move by Brownback is likely the most consequential. Brownback issued an executive order transferring foster care licensing programs from the KDHE to DCF.

In the wake of the change, DCF has initiated an ongoing review of foster care licensing policies. The review sparked speculation from Douglas County District Court Judge Peggy Carr Kittel this summer that the agency was considering a change that would require foster care parents to be married.

Reporters asked Gilmore about Kittel’s concerns at a legislative hearing on foster care last month.

“We are reviewing from bottom to top the entire licensure system,” Gilmore said. “But I think that is a myth that is just sort of self-perpetuating that there’s any real attention — we’re focused on the safety of children and the best possible way, we really want to focus on family preservation and children not even being removed from the home.”

Pattern of alleged discrimination

When news came that a baby girl, just days old, needed a home, Tesa Hines dropped what she was doing.

“I ran to the store and bought like $500 worth of baby stuff,” Tesa Hines said excitedly Sunday, her wife, Lisa Hines, laughing next to her. “I started putting all this stuff together. Who even needs a stroller at 5 days old?”

All the Hineses wanted was to start a family. The couple married in 2008 and moved to Wichita in 2010 with that goal in mind, but after spending several thousand dollars trying to get pregnant the women decided their best option was to adopt, Lisa Hines said.

The Hineses had been working with St. Francis Community Services, a contractor that handles foster care and adoptions for DCF, as a foster-to-adopt family. In November 2013, a social worker asked the Hineses whether they would be interested in caring for a 5-day-old girl. The answer was easy.

“I stood there staring at this baby,” Lisa Hines said. “It was like a stork had delivered her to me.”

But the Hineses’ dream of a family hit a roadblock in early 2014 when they were told a Topeka couple, Jonathan and Allison Schumm, were interested in the baby. In June, after a brief home visit, a social worker told the Hineses the Schumms would probably win adoption rights.

“She basically said, ‘Your adoption is going nowhere,’ ” Lisa Hines said. “I told her, ‘You’re crazy if you think I’m just going to lay down and let you take our baby.’”

The Schumms had adopted half-siblings of the girl and argued in a months-long custody case that the sibling connection was enough to grant them the adoption. The Hineses believed they were closer kin since the girl had spent months with them and only a few hours with the Schumms, Lisa Hines said.

A Sedgwick County judge last year placed the girl in the home of the Topeka city councilman. In October 2014, the baby was removed from a Wichita daycare and taken to the Schumms’ home where the family was raising more than a dozen other children. Schumm and his wife were arrested Nov. 19 on charges of child abuse.

“They basically cherry-picked our daughter. They took her away and exposed her to abuse. They exposed her to torture,” Tesa Hines said.

Repeated attempts to contact the Schumms since their arrest have been unsuccessful. Jonathan Schumm declined to comment when a reporter approached him at a Topeka City Council meeting on Tuesday.

What happened to the Hineses isn’t uncommon, said Tom Witt, executive director of Equality Kansas, one of the state’s leading LGBT advocacy organizations.

Since Brownback appointed Gilmore secretary of DCF in 2012, Equality Kansas has heard from a growing number of gay and lesbian couples across the state who feel DCF treated them unfairly. Most don’t speak publicly for fear of retribution, he said.

“The families being abused by DCF and being torn apart by DCF don’t feel like they have a lot of options,” Witt said.

Lawmakers last month examined foster care at a hearing. Sen. Forrest Knox, R-Altoona, headed up the meeting and earlier this week criticized media coverage of foster care and same-sex couples.

“My concern is the children. If the state has custody of children, should we not do the best we can at meeting their needs? There is no ‘right’ of certain people or classes of people to be licensed foster parents. The state should select the best foster parents, based on verified, statistical evidence, to meet the needs of children,” Knox wrote on his Facebook page.

Aimee Kozushko, of Derby, said she believes DCF discriminated against her. In 2011 Kozushko and her wife, Jen, decided to become foster parents. Like the Hineses, the Kozushkos have a background in social work and felt a desire to foster and adopt as a way to start a family.

Though the women are married, the state recognizes only Aimee as the legal mother of their two adopted boys. She adopted their 4-year-old, the first foster child placed in their home, in 2011 in a smooth adoption. But when Kuzushko wanted to adopt three other children, including their second son, who is now 3 years old, the family struggled with DCF.

In the case of the boy, a best interest staffing — a group of social workers including representatives from DCF, a court representative, St. Francis, the child’s guardian ad litem and others familiar with the case — voted in favor of Kuzushko becoming his parent. The boy’s Choctaw tribe also approved the adoption, but DCF overruled the decision citing concerns about income, she said.

Kuzushko won custody of the boy after a lengthy battle, but the girls the family wanted to adopt were placed elsewhere. One girl had lived with the couple for four years.

“They really bullied us,” Kuzushko said as she fought back tears.

Another Wichita mother, Amber Lyons, also is concerned about discrimination. In August, she began the process of adopting a child she has cared for seven years but would like her wife to also have custody of the boy. Because the couple has a common law marriage, not a marriage license, Lyons said the state won’t grant a joint adoption.

“We just want to be treated fairly,” she said.

In all three cases, the biological parents relinquished custody rights or were forced to do so by a court. Social workers then reached out to distant relatives in search of someone interested in adopting. The Hineses see this as an overreach and argued in their custody battle with the Schumms that legal ties between biological siblings are broken when adopted by separate families.

Justin Thaw, interim director of adoption services for St. Francis, said regardless of legal ties, social workers often reach out to relatives when a child is up for adoption because sibling and family relationships are often the strongest and longest lasting.

Though all three Wichita cases were handled by St. Francis, confidentiality laws prohibit Thaw from commenting on specific cases.

As many as 10 gay or lesbian couples have come to Witt with concerns about discrimination. He refers them to lawyers, but most don’t have the resources to engage in a court case, he said.

“I’ve had several couples come to me,” Witt said. “It just has to stop. This whole business is just getting out of hand.”