Maricopa County Attorney Bill Montgomery has until the end of today to answer the second letter he received from the ACLU of Arizona asking why same-sex married couples are not entitled to certain adoption benefits regularly provided to heterosexual couples.
The ACLU sent Montgomery a letter earlier this spring on behalf of clients Leticia and Lenora Reyes-Petroff after an MCAO attorney told them that they were not eligible for the free legal services advertised on the office’s website. According to ACLU Legal Director Victoria Lopez, the MCAO never responded.
The new letter, which was sent less than a week after the U.S. Supreme Court declared same-sex marriage legal, gives Montgomery one more chance to change policy. Failure to respond, the letter states, could result in litigation.
“The County Attorney’s Office has an obligation to provide services in a fair manner to everyone, and if they don’t, it’s unconstitutional,” Lopez says. “A government entity can’t contract away their constitutional obligations.”
At the center of this case are Maricopa County residents Leticia and Lenora Reyes-Petroff. The couple got married in California in 2013, and Leticia gave birth to a baby through artificial insemination a little while later. Lenora wanted to officially adopt the child and began researching the process. She discovered a document on the MCAO website that said legal fees for adoption services would be waived if the adoption is uncontested, and she was thrilled. (An uncontested adoption, according to the MCAO, is one in which either “the birth parents consent to the adoption, the parental rights of the birth parents or parent have been legally terminated, or consent cannot be obtained because the birth parents are deceased.”)
But then when she called the office, she was told those benefits don't extend to “her type of people.”
Furious, she took to Facebook about the issue. “You are discriminating against same-sex couples flat-out and you know it!” she wrote on Montgomery's page. The county attorney responded to her post, writing that last October’s “9th Circuit ruling addressing the issuance of marriage certificates does not, on its face, affect the adoption statutes.” Montgomery argued that he was bound by the language of the law, and until the wording was changed, he could not offer free adoption legal services under the county program.
The Reyes-Petroffs contacted the ACLU about the issue, and since then, Lopez says, the organization has heard from many other couples in similar situations.
When asked about the ACLU letter, MCAO spokesman Jerry Cobb says that as a matter of policy, the office does not comment on possible litigation but adds that, currently, all legal adoption services are contracted to outside counsel. “Those attorneys make those decisions [about] whether or not to provide the free services.” He adds that the office trusts its contractors and doesn’t micromanage who it provides services to — for all he knows, many same-sex married couples have received the free benefits.
The ACLU does not find that answer satisfactory. “I’m not sure what it means [in this situation] to outsource,” Lopez says. “What level of services are being provided? From our perspective, we still have a lot of questions about outsourcing.” She adds that the MCAO has not responded to multiple requests for clarification — attempts that so far include last week’s letter.
“We’ve asked them to provide updates on policy [and] I hope we can have clear and transparent clarification about adoption services,” she says. “A government entity can’t contract away their constitutional obligations.”
The ACLU believes it has both federal and state law on its side. In early February of this year, the Department of Child Safety declared it no longer would allow same-sex married couples to be jointly licensed foster parents, let them receive the same adoption placement preferences, or certify them to jointly adopt foster children because of the pending Supreme Court decision about same-sex marriage.
The ACLU sent newly appointed DCS Director Greg McKay and Arizona Attorney General Mark Brnovich a strongly worded letter about the issue a few weeks later: “DCS’s decision to change its policy . . . clearly violates the existing law. In October 2014, the federal district court rules that Arizona’s ban on same-sex marriage is unconstitutional . . . Furthermore, that a law may change in the future does not release DCS of its duty to follow current law. Marriage equality is the law in Arizona and state agencies must uphold and follow the law.”
In late April 2015, Governor Doug Ducey announced that he was reversing that ban effective immediately. Citing the 17,000-plus children in the state’s foster care system, his office issued a statement: “We need more adoption in Arizona, not less.”
Ducey said that DCS’ new policies “do not match those priorities, therefore, I'm instructing the Arizona Department of Child Safety to immediately ensure that all legally married couples in Arizona are able to jointly serve as foster parents and adopt. All children deserve a loving home, and under my watch, I'm committed to making sure government encourages that."
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To be clear, Lenora Reyes-Petroff faces no legal barriers to adopting the child she’s raised since birth. What she and others who have contacted the ACLU argue is that the MCAO has an obligation to treat them like any married heterosexual couple and offer the same adoption benefits and services.
“We’ll see if the [MCAO] responds,” Lopez says. “And we’re prepared to file litigation on behalf of our clients if they don’t.”