By NANCY DOCKTER
Leader staff writer
Arkansas voters said yes Tuesday, to a proposed ban on adoption or foster parenting of a minor under age 18 by anyone who is living with a sexual partner outside of marriage.
Now, the Arkansas Department of Human Services (and its attorneys have less than two months to decide how to implement the ban. The new law will take effect the first day of 2009 and will apply to all foster care placements and adoptions, including those arranged by public agencies and private entities, from that day forward.
The new law will not apply to guardianship through the courts, which will remain an option for unmarried couples wanting to be foster parents.
In general, the new law will not cause a dramatic decline in the number of foster care placements. For many years, DHS has restricted adults of the opposite sex who live under the same roof – regardless of sexual involvement – from being foster parents. Only recently had the agency decided to liberalize that policy.
“The current (initiated) act is reflective of how we have been practicing except for waivers,” said Julie Munsell, director of communications for DHS.
Policing or monitoring of relations between prospective parents is not likely to happen.
“That kind of information about family dynamics starts with voluntary disclosure or almost always emerges with the home study” that is part of the evaluation of prospective foster homes, Munsell said.
Currently about 3,700 children in Arkansas are in foster care. Nearly 1,200 homes are approved and available for foster care placements.
Forty-eight percent of foster homes are headed by married couples; 18 percent are headed by single, divorced or separated females. Less than 1 percent of the homes are headed by divorced or single males. Emergency shelters or group homes comprise the other foster care settings.
LAW LIMITS ADOPTIONS
Munsell and others involved in foster and adoption placements lament the new law’s limit on the pool of qualified prospective parents and say that it will do nothing to guarantee child safety and well-being.
Currently, children needing a foster home do have a place to go, at least on an emergency basis. The issue, Munsell said, is having the flexibility to select a family setting that best meets a child’s emotional and other needs. Now, placement in the home of a relative will now not be possible if that person is in a sexual relationship with someone living in the same household.
The alternative will then be to go before a judge and petition for guardianship of the child.
“Preferential treatment is given to family members; otherwise, you have to assert that there is no relative who is willing or able to care for this child,” Munsell said.
The drawback will be, with the new law, that cohabiting couples acting as guardians will never be able to adopt a child in their care.
Proponents of the new law claim that it will protect children from harm more prevalent in households that are not headed by married couples. They point to research findings that physical abuse against a spouse or child is much higher for cohabiting couples than those who are married.
Munsell agreed that there have been a number of recent child abuse cases involving live-in boyfriends.
However, she questioned the logic that cohabiting was the root cause of the abuse. Emotional instability and other problems that make an individual unfit to parent do not fit neatly into demographic categories, she contended.
“Thirteen foster homes were closed by DHS recently because of abuse or neglect, and they were all over the map,” Munsell said. “Single, married, older, younger, from all over the state. Marital status does not predict; there was no pattern as to who was most likely to harm a child. It is as varying as the uniqueness of individuals and has more to do with substance abuse and family upbringing.”
Munsell said that the best approach to placement is to leave that decision to “skilled workers who can best assess what living situation is best for the child.”
Two months ago, DHS was on the verge of codifying its longstanding practice of not allowing adults of the opposite sex living under the same roof to be foster parents.
DHS REVERSED COURSE
A public hearing as part of the rulemaking process drew unexpectedly broad opposition to the idea from pediatricians, social workers, judges, attorneys and foster children. DHS decided to reverse course and instead formulate rules for a more liberal application process.
Under new rules, which did not have time to take effect, unmarried adults, regardless of marital status, living in the same household would be able to apply, and each situation would be evaluated on a case-by-case basis. Now, that plan has been scrapped and DHS must get busy drafting rules to conform to the newly approved initiative.
Kaye McLeod, a lawyer who arranges private adoptions, foresees scenarios in which unmarried individuals who are otherwise suited to be adoptive parents will be disallowed by law.
That will include individuals with roommates, grandparents, or couples married under common law in another state and any arrangements in the works for adoptions slated for 2009.
Partners in a common-law marriage from another state might also be barred from adoption or serving as foster care parents, McLeod ventured. Arkansas law does not allow common law marriage but honors those arrangements made in other states.
That will be something for the lawyers to sort out.
In the past, DHS did allow for exceptions to its own restrictions regarding cohabiting adults. Now those waivers will be illegal.
McLeod, who has arranged more than 2,500 adoptions in almost 28 years, recalled a case on the East Coast. The adoptive parent worked in the financial office of an Ivy League university and happened to have a roommate of the same sex.
“There will be a definite impact on these categories; those people’s sexual orientation will be in question if they want to adopt,” McLeod said.