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Gay adoptive dad gets help to receive subsidy

In his battle with Florida child welfare administrators, a gay adoptive father in Key West may now have a new ally: federal regulators.
BY CAROL MARBIN MILLER, cmarbin@MiamiHerald.com

As a Miami appeals court ponders the fate of one gay adoptive father, federal child welfare regulators may step in on behalf of another.

U.S. Department of Health and Human Services administrators have written an e-mail backing the efforts of Wayne LaRue Smith, the first openly gay person in Florida to legally adopt in decades, who is seeking a federal subsidy given to Floridians who adopt a foster child.

In February, the Department of Children & Families said Smith was not entitled to financial assistance because his adopted son already was in his custody through a permanent guardianship.

The federal dollars, DCF said, only are available to children who are in foster care.

But in an e-mail to Smith's lawyer, Alan Mishael of Miami, federal regulators called DCF's position ``inconsistent with federal law.''


In the e-mail, Ruth Walker, HHS's regional program manager in Atlanta, said ``there are several paths'' to a federal subsidy, and added: ``None of these paths to an adoption [subsidy] require that the child be in foster care immediately preceding an adoption.'' Walker could not be reached for comment.

``Our regional office will follow up with the state of Florida on this potential noncompliance issue,'' Walker wrote in the Aug. 29 e-mail, adding that the federal agency had not looked specifically into Smith's case and was not rendering a formal opinion.

Alan Abramowitz, DCF's child welfare chief in Tallahassee, and regional boss in Miami when Smith adopted the teen, said Smith and the department will meet before a hearing officer who will decide whether ``it is in the best interests of the child'' to be given federal assistance.


Abramowitz said Smith has been treated the same as any other adoptive parent whose child was not in foster care at the time of adoption.

Under state policy, he said, only children in state custody at the time of adoption are eligible for financial aid.

``We are trying to ensure that the family is treated fairly,'' Abramowitz said.

In August 2008, Monroe Circuit Judge David J. Audlin, Jr. approved Smith's adoption of a then-13-year-old boy, identified only as John Doe.

The boy, who has special needs and learning disabilities, had been living with Smith and Smith's long-time partner in Key West since 2001.

In his adoption order, Audlin struck down a 32-year-old Florida law that forbids gay men and lesbians from adopting children.

Though Florida allows gay people to foster children, it is the only state in the country that does not allow them to adopt.

The state did not appeal Audlin's order. But the following November, a judge in Miami, Cindy Lederman, also declared the adoption law unconstitutional in a case that allowed Martin Gill of North Miami to adopt two half-brothers in foster care he had been raising since 2004.

DCF did appeal Lederman's order. The case now is pending before the Third District Court of Appeal, which held oral arguments last month.


Although Smith's adoption of the teenager remains unchallenged, the fight over financial assistance quickly turned testy, with accusations by Smith and his lawyers that he was being treated unfairly because he is gay -- allegations DCF denies.

In correspondence with Mishael and in comments to The Miami Herald, DCF administrators said state policy was clear: Only children in state care at the time of their adoption are eligible for the subsidy, which would have given the teen Medicaid coverage, a tuition waiver for any Florida college or university and monthly stipends.

The subsidies generally are granted to all children who are adopted out of state care, and DCF administrators fought bitterly to retain funding for the subsidies last year amid gaping budget holes, arguing that, without the financial assistance, it would be almost impossible to recruit adoptive parents for foster kids.

In July, Mishael asked HHS -- which provides the federal dollars and oversees the federal child welfare program upon which most states depend -- to weigh in on DCF's refusal to grant the subsidy.

``Had my client not been gay, discriminated against by the state of Florida for that reason and been forced to therefore sue to have the ban declared unlawful so that the adoption would be allowed, the adoptee would be receiving an adoption subsidy,'' he wrote in a July 27 e-mail.


Mishael also pointed out that DCF appeared to be taking contradictory stances on the two gay adoption cases. In his case, he wrote, DCF argued that John Doe's permanent guardianship left the child outside the orbit of DCF's oversight -- that it was, in effect, a permanent home.

But in the Gill case, now on appeal, DCF argued that children in guardianships were still subject to DCF oversight.


Abramowitz said the state is acting differently in the two cases because the facts of the disputes are different.

In Smith's case, he said, DCF did not challenge the adoption -- and continues to stand mute -- because the agency no longer had custody of the child. In the Gill adoption, the two half-brothers still were in foster care and under DCF supervision.

``In one case, we're doing one thing, and in the other, the subsidy tells us to take another path,'' Abramowitz said.


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