BY CAROL MARBIN MILLER, cmarbin@MiamiHerald.com
Frank Martin Gill never set out to smash Florida's gay adoption law. A foster parent, Gill took two half-brothers into his North Miami home in 2004 when a child abuse investigator asked for his help. It was supposed to be temporary.
But weeks turned into months, and then years. Gill and the two boys became a family.
Now, a month after a Key West judge declared Florida's gay adoption law unconstitutional in a separate but narrow case, Gill and a team of lawyers from the American Civil Liberties Union will present a new challenge to Florida's 31-year-old law that forbids gay people from adopting.
''I tried to make them feel, from the beginning, like they had a permanent home,'' Gill said of the boys.
He said he told the boys: ``I'll be your daddy; it doesn't matter what happens, I'll always be your daddy.''
Gill's attorney, Robert F. Rosenwald Jr. of the ACLU, said the case boils down to a simple human equation: ``What is at stake in this trial are two little boys getting to know that they get to stay at the only home they've ever known.''
In Florida, gay people can foster children, but they cannot adopt. Although the Key West ruling declared the law unconstitutional, it was not appealed to a higher court, so its significance as legal precedent remains weak.
On Wednesday, Miami-Dade Circuit Judge Cindy Lederman will begin a trial over Gill's petition to adopt the two half-siblings. Their mother and respective fathers lost their rights to raise them in 2006.
Opposing Gill are the Florida Department of Children & Families and the state attorney general's office. Neil Skene, a DCF special counsel, said he couldn't discuss the Gill adoption, citing the confidentiality of adoption cases. He said that, in general, DCF ''is obliged by statute to oppose the adoption'' when any potential adoptive parent discloses that he or she is gay. The attorney general defends state laws that are challenged, Skene said.
Gov. Charlie Crist said Tuesday that he is not reconsidering the adoption ban. ''No second thoughts,'' he said.
Currently, 3,270 Florida foster children are available for adoption statewide, including 415 in Miami-Dade, 229 in Broward and 13 in Monroe counties, said DCF spokeswoman Erin Geraghty. Many of the children have special needs, like mental illness or developmental disabilities.
The challenge to Florida's law -- which was approved in 1977 amid a heated battle over the civil rights of gay men and women -- will play out in Lederman's small courtroom in Miami's Juvenile Justice Center.
Gill's trial will feature dueling scholars; lawyers for both sides say they intend to present academic research to prove their cases.
State leaders say the stakes are high.
''This case involves issues of great public importance in that [Gill] is challenging a state statute's validity on constitutional grounds,'' Assistant Attorney General Valerie J. Martin wrote in court pleadings.
In court records, state leaders maintain they are upholding public morality and working to ''encourage optimal family structure by seeking to place adoptive children in homes that have both a mother and a father; and in promoting the moral, emotional, mental and physical well-being of minor children,'' Martin wrote.
Gill's attorneys, and lawyers who will represent the two children, insist there is no ''reliable scientific research'' concluding that children fare better in families with heterosexual parents. And without such proof, they say, the state is discriminating against them.
''Florida's statutory gay adoption ban is a constitution-breaching whipsaw of the innocent,'' wrote Charles Auslander, a Children's Trust chief and one of the boys' lawyers. ``It prevents children innocently placed with these foster caregivers from achieving permanency for a reason entirely beyond the power of the child to remedy.''
The two boys, whose names are being withheld to protect their privacy, were raised by the same mother, whose parental rights were severed in 2006. Court records say the mother used cocaine and refused to testify against one of the boys' fathers when he physically abused them.
Gill, 47, and his 34-year-old partner took custody of the half-brothers in December 2004. The boys live with Gill, his partner, and his partner's teenage son in North Miami. Gill's partner is not being named to protect the privacy of his birth son, who shares his name.
In his adoption petition, Gill said ``the boys are thriving physically, emotionally and intellectually.''
When the boys entered foster care, ''they both had peeling scalps because of ringworm, and [the older boy] barely spoke for the first month and was significantly behind his peers developmentally,'' records say.
Recently, Gill said, he had the two boys write down the new surnames they will be given after adoption. The 8-year-old had a look of panic, at first, because he had barely mastered writing the name he was given at birth.
''But then I looked down,'' Gill added, 'and he had a big look of contentment. He spent the next hour writing his new name. `We're going to have the same last name,' '' Gill says the boy said. ' `That's going to make us a family.' That just broke my heart,'' Gill added.
Hilarie Bass, managing partner for the law firm Greenberg Traurig, who was appointed by Lederman to represent the boys, recommended in a report that Lederman grant the adoption petition.
IN GILL'S CORNER
''Upon my visit to the home, I observed the minor children to be happy, healthy, well-adjusted, well-groomed, polite and energetic kids,'' Bass wrote. 'Both . . . referred to [Gill] and [his partner] as `Dad.' ''
A court-appointed guardian also has recommended that Gill be allowed to adopt the boys, records say.
The older boy has caught up academically, and after a long period of remaining aloof, has bonded with other family members, Gill said. He said he fears that if the children are forced to leave his house, they will never be able to bond with an adult again. The children could remain with him as foster kids permanently, but without the certainty of an adoption, they will always be at some risk, he said.
''I don't think it does a child any good to think that, at any moment, he could go back to DCF or to another foster family. That's a horrible thing,'' Gill told The Miami Herald in a recent interview. ``That's a terrible consequence to a child. . . . We are his parents now.''
Photo of Frank Martin Gill with one of his foster children by CARL JUSTE / Miami Herald Staff