Illinois Lesbian Foster Mom Prevails

Illinois Lesbian Foster Mom Prevails

State Supreme Court voids efforts by parents found responsible for abuse from changing custody

In a factually and procedurally complex ruling, the Illinois Supreme Court ruled on January 21 that a lower court erred when it ordered that the foster son of a lesbian who hoped to adopt him be removed from her home and placed in the custody of the boy’s maternal grandfather and step-grandmother.

Chief Justice Mary Ann G. McMorrow wrote the opinion for unanimous group of six members of the court who participated, and it made no mention of the foster mother’s sexual orientation

The case concerned young Austin W., born in 1999, to B.W., an unmarried mother of three other children. At the time, B.W.’s other children had been removed from her custody by the state’s Department of Children and Family Services (DCFS) due to findings of abuse or neglect. DCGS asserted authority over the new baby as well, and he was placed with B.W.’s father and step-mother, William and Wendy Ward, with the idea that B.W. might eventually qualify to have custody of him, but that eventuality never materialized.

DCFS suspected that the infant was abused while in the custody of the Wards, and there was testimony from one of B.W.’s other children that Wendy Ward used corporal punishment on the nine-month old Austin, even though she told investigators she did not know how the child sustained injuries that were discovered.

Austin was then placed in foster care with Rosemary Fontaine, a lesbian living with her partner. For two years, Austin had regular supervised visitation with the Wards, but lived full time with Fontaine and her partner. Having bonded with Austin, Fontaine sought to adopt him, a proposal that DFCS endorsed.

But the Wards wanted to reclaim him and the attorney appointed guardian ad litem for Austin, Timothy Berkey, sided with the them, as did a church social worker who had contact with the family. An administrative law judge found that the Wards had abused the child as an infant, but Berkey filed a motion on their behalf for a change in custody back to them in a different county, and the courts in that county paid little attention to the findings of abuse.

The Supreme Court found that the lower court’s decision granting a change of custody to the Wards was seriously flawed in numerous, virtually inexplicable ways. Although none of this was articulated in the court’s opinion, it seems likely that the lower court proceedings were tainted with bias toward the grandparents and against Fontaine, in light of the extraordinary chain of erroneous rulings the lower courts committed.

For example, the court found the testimony of doctors about Austin’s abuse, found credible by an administrative agency, to be non-credible, even though the court never heard from the doctors. And despite the fact that the child welfare statute set out a long list of criteria for determining the best interest of the child, the lower court overlooked key criteria that weighed heavily in favor of keeping Austin in Fontaine’s care, while overlooking factors that militated against switching him to the Wards.

The Supreme Court reversed the lower court’s order, and ordered reinstatement of DCFS as the custodial guardian of Austin with authority to consent to his adoption by his foster mother, Rosemary Fontaine.

The decision never mentions Fontaine’s sexual orientation, or the possibility that bias against her might have infected the process, but the decision is nonetheless significant, especially in light of the recent ruling by the U.S. Court of Appeals for the 11th Circuit upholding the irrational anti-gay adoption policies of the state of Florida.

Lambda Legal, the national lesbian and gay public interest law firm, took an active role in the case, making sure that Austin remained in Fontaine’s custody while the appeal was pending and lining up a local attorney from a major firm to represent her interests.