County won’t help gay spouse adopt
Same-sex partners have the right to marry in Arizona, and the courts allow them to adopt children as couples.
But the Maricopa County Attorney’s Office will not extend its adoption-assistance services to them, as one couple discovered in a Facebook confrontation with County Attorney Bill Montgomery.
Lenora and Leticia Reyes-Petroff, both 34, married in California in 2013.
In early 2014, Leticia gave birth to a child, conceived through artificial insemination.
But since Arizona, like many states, did not recognize same-sex marriages at the time, and since state adoption law stated that only a husband and wife could jointly adopt a child, Lenora could not legally be considered a parent to their son.
After the 9th U.S. Circuit Court of Appeals declared bans on same-sex marriage unconstitutional and Arizona legalized same-sex marriage, Lenora, an attorney, began looking into what’s known as a “stepparent” adoption, when a person adopts his or her spouse’s biological child.
She went to Maricopa County Superior Court looking for the proper applications to fill out, but couldn’t find any.
“There are no forms available through the courts, so we couldn’t do self-service,” Lenora said.
And going through a private attorney was more expensive than the couple could afford.
Then Lenora discovered that the Maricopa County Attorney’s Office has a program to assist couples with “uncontested adoptions” of all sorts.
“All of our legal services are provided free of charge to adoptive parents,” the office’s website says. “The only costs involved would be document and fingerprinting fees.” Lenora was delighted. “I thought, ‘That’s the answer to our problems,’ ” she said.
But when she called the County Attorney’s Office on Monday, she was told that the office didn’t handle her “type” of adoption. And the employee she spoke with couldn’t seem to locate a supervisor for her to talk to, she said.
So, this being the 21st century, Lenora took her beef to Facebook, specifically to Montgomery’s Facebook page.
“Second-parent adoptions require three things,” she wrote in her post, “one person in the couple (must) be the biological parent, the couple must be married, and that the other biological parent must have their parental rights severed — Check, check and check. There is nothing to figure out here! You are discriminating against same-sex couples flat out and you know it!”
To Lenora’s utter surprise, Montgomery answered her on Facebook.
“My ability to provide legal representation to individuals is specifically limited by Arizona law,” he wrote. “So, the specific instances in which any County Attorney can file the petition you are referencing is also limited. The 9th Circuit ruling addressing the issuance of mar- riage certificates does not, on its face, affect the adoption statutes.”
Montgomery wrote that his staff would monitor the case.
It’s generally recognized, from a constitutional standpoint, that you can’t draw distinctions among citizens when recognizing their rights.
“You can’t say you’re only married for marriage purposes,” said Paul Bender, a professor at Arizona State University’s Sandra Day O’Connor College of Law. “If they have said we will do this for heterosexual married couples, I would think they are prohibited from saying we won’t do it for you.
“When the court determines that it is unconstitutional to deny marriage to homosexual couples, then it’s unconstitutional to deny the benefits of marriage to those couples,” Bender said.
The Arizona adoption statutes do say “a husband and wife may jointly adopt children.” And they say that “placement preference shall be with a married man and woman.” Whether that wording stands up against the 9th Circuit ruling remains to be seen. But the stepparent statutes say nothing of the sort. Lenora took issue. “My wife doesn’t have to adopt her own child, so I don’t think that’s applicable.”
And as pointed out by adoptions attorney Claudia Work, “There is no gender specificity in our stepparent statutes,” which are the ones that apply to the Reyes-Petroffs.
Lenora pointed out to Montgomery in their Facebook exchange that she and Leticia were legally married, and that the courts are already granting stepparent adoptions to same-sex couples.
Maricopa County Superior Court does not keep statistics on same-sex adoptions, but Work told The Arizona Republic that she alone has handled a dozen such cases since December.
Montgomery’s Facebook response to Lenora: “The court’s action is completely different from what I can/cannot do.”
Then he asked her to send him a letter outlining her concerns.
“It certainly seems the law is on our side, but the county attorney doesn’t want to help us like they help everyone else,” Lenora said. “Opposite-sex couples are receiving these services for free, and same-sex couples have to hire a private attorney to get the same thing done.”
When The Republic asked for further clarification, Montgomery stood firm.
“The 9th Circuit opinion specifically addressed marriage,” he said. “It didn’t address adoptions.”