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Ninth Circuit considers if gay couple trying to adopt faced retaliation

An appellate court judge questioned why the county of San Diego would remove a state court case related to an adoption dispute to federal court — calling the practice “a continual frustration.”

(CN) — A San Diego attorney and prospective adoptive parent asked the Ninth Circuit Thursday to revive her case claiming she was retaliated against by social workers for raising concerns about a stalled adoption and has not had a child placed in her care for years because of it.

“Three years later I still have the same questions: What date did the placement end and why did it end? I also have questions of why haven’t more children been placed in our home,” San Diego attorney Sara Kelley, representing herself and her wife Teresa Smith, told a Ninth Circuit panel during a virtual hearing.

Kelley claims San Diego Health and Human Services Agency social worker Jessica Ayala started a retaliation campaign against her in March 2018 after Kelley spoke out about court delays in adoption paperwork to adopt a teenage boy she and her wife were fostering.

On Father’s Day the teenager was removed from their home after making a statement about wanting a “mom and dad.” Kelley claims he was also removed due to her refusal — at Ayala’s insistence — to stop speaking about sexual orientation and adoption in her home.

Kelley said she was forced to take classes to cure her “deficiency” of making comments deemed inappropriate by social workers.

Later, as part of an investigation review, Kelley and Smith were told the teenager was removed because they were “pushing” gay on the minor, according to the couple’s 60-page petition.

But the hearing Thursday wasn’t focused on whether the couple was discriminated against due to their sexual orientation.

Instead, the panel was interested in whether there was a constitutional violation from the minor’s removal — after he told social workers he wanted to leave the couple’s home.

“If he didn’t want to consent to adoption or he didn’t want to return, how were you deprived of any rights by the state removing him,” U.S. Circuit Judge Andrew D. Hurwitz, a Barack Obama appointee, asked Kelley.

Kelley argued she was deprived of the constitutional right to due process.

But U.S. Circuit Judge Kim McLane Wardlaw, a Bill Clinton appointee, pointed out under state law a teenager must consent to an adoption.

“I don’t think the law can be you have a federal constitutional right to adopt a particular teenager against his will,” Wardlaw said.

Since the adoption dispute, Kelley said the county has refused to place any other foster children in her care even though she has a valid license and there are hundreds of children waiting for a home.

“I was recently informed because of this particular case, because I am suing the county, they will never place a child in my home,” Kelley said.

But both Hurwitz and Wardlaw pushed back on Kelley’s claim the county retaliated against her by requiring she take a parenting class.

“You were free to go to the class. You weren’t sentenced to the class and taken there by the sheriff’s. You could have said no. I don’t see liberty interests being implicated,” Hurwitz said.

County counsel Jeffrey Michalowski said: “I think what this case really shows is sometimes foster relationships just don’t work out.”

He noted the Juvenile Court, Fourth District Court of Appeals and Southern District of California had previously found the minor’s removal was justified.

“What this is, is just a case where the teenager didn’t feel like he was in the right home.” Michalowski said.

When asked by Hurwitz “How can I tell that from this record?” Michalowski pointed to a confidential nonobjection to removal document, which showed the teenager wanted to leave the home and Kelley and Smith agreed.

Discussion by Michalowski about the back-and-forth documents filed in the Juvenile Court proceedings prompted Hurwitz to question why the county would remove the case to federal court, when the state court was well-suited to decide the case.

“This is an aside and it bears no influence on the outcome of your case: Why in the world did the county remove? It’s in state court, you’re the state or agency of the state and part of the issue is what happened in state court proceedings, and you schlep it over to the District Court to ask the District Court to try and figure that all out,” Hurwitz commented, calling the practice “a continual frustration.”

“Just advice for a future case,” he added.

In response, Michalowski said, “I understand, your honor.”

Turning to Kelley’s retaliation claim regarding no new foster care placements by the county, Michalowski said, “finding a good match is difficult.”

“The defendants are required by statute to place each child in protective custody in the most family-like setting that will meet their individual needs and it’s not always going to be a good fit. It deals with the idiosyncrasies of particular parents and particular children,” he added.

U.S. District Judge Stephen R. Bough, an Obama appointee sitting with distinction from the Western District of Missouri, rounded out the panel.

The matter was taken under submission.

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