February 13, 2009 - 4:23pm

Dad fights for benefits for his child

Miami Herald, 2/12/2009

View article on Miami Herald

Now, two years later, Smith faces a legal Catch 22. In August, a Key West judge declared the state's gay adoption law unconstitutional, allowing Smith to adopt his foster son. But state child welfare administrators have declined to provide the boy a host of financial benefits available to foster kids who are adopted.

Their reason: Because the boy was already in a guardianship, he was no longer a foster child when he was adopted.

''We have never granted an adoption subsidy in a guardianship case,'' Department of Children & Families Secretary George Sheldon said.

Smith suspects there's another reason: He was the first gay Florida man in almost two decades to legally adopt a child from state care. Though state officials did not oppose the adoption, they strongly contested a similar case that prompted a Miami judge to declare the 1977 adoption law unconstitutional in November.

''I cannot think of a rational, good-faith reason for the state's position,'' Smith told . ''I'd call it malicious.''

''I cannot promise I'll be here tomorrow,'' Smith added. ''Every other child in this position gets these protections. He should have them, too.''

Unlike foster parents, guardians have the legal right to make personal and financial decisions for their wards, including decisions over healthcare and education. Most commonly used to protect frail elders, guardianships in child welfare grant adults similar rights to a parent, though they fall short of an adoption. Foster parents cannot make medical decisions without the consent of either a birth parent or the state.

Smith's appeal of DCF's decision is pending before a state hearing officer. If Smith loses -- and families seldom win such hearings before DCF employees -- he can appeal directly to Sheldon. From there, he can go to a state appeal court, Sheldon said.

State law allows gay men and lesbians to be foster parents but not to adopt, a discrepancy that from time to time leaves foster kids in a legal netherworld.

Smith, a Key West lawyer who has been in a stable relationship since 1988, was licensed by DCF as a foster parent in 1999. In 2001, the agency placed a then-5-year-old boy, who is learning disabled and has other special needs, in his home.

In 2006, a Monroe County child-welfare judge suggested Smith become the permanent guardian for the boy because, under the state law, he could not adopt. Because both state and federal law require that children in state care quickly find a permanent home, the boy would have been at risk of being moved to another family, Smith's attorney, Alan Mishael, wrote in a letter to DCF.

In August, Monroe Circuit Judge David J. Audlin Jr. said the Florida law forbidding gay people from adopting children is contrary to the state Constitution because it singles out a group for punishment. Audlin approved Smith's adoption of the boy, and neither DCF nor state Attorney General Bill McCollum objected.

Last fall, Smith applied for a state adoption subsidy, which would have given the boy state-funded health insurance under Medicaid, 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 have said that without the financial assistance, it would be almost impossible to recruit adoptive parents for foster kids.

On Dec. 5, DCF denied Smith's request, saying the subsidies are granted only to children adopted from state custody. Because the boy was already in a permanent guardianship at the time of adoption, he was not eligible, DCF Miami administrator Alan Abramowitz wrote.

Abramowitz, who inherited the case after the adoption, said he insisted in department conversations that Smith ''not be treated any differently than other people,'' he said.

''I said if we deny, it has nothing to do with his being gay,'' he said. ''That cannot be an issue.''

Sheldon says the denial of the subsidy is consistent with DCF's decision not to oppose the adoption in the first place: ''The reason we did not intervene in the adoption order was because the child was not in our care, and we were not a party to the case,'' he said.

Mishael, Smith's lawyer, said the gay-adoption ban left Smith at a disadvantage. If he did not seek the guardianship, he risked losing the child he had been raising for five years. But once the guardianship was granted, it made him instantly ineligible under DCF rules for the financial aid every other adoptive child receives.

The money, Smith said, could have helped defray tens of thousands of dollars in educational, tutoring and therapy bills, not to mention the health insurance and tuition waivers.

Our Kids, Miami-Dade's privately run foster-care agency, which manages DCF's adoption program in Miami, does not oppose Smith's request for a state-paid subsidy.

''Our Kids was under the impression that this family was eligible for an adoption subsidy,'' said Fran Allegra, who heads Our Kids. ''We believe that paying this subsidy is in the best interests of the child.

''We stand ready and prepared to pay,'' Allegra added. is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. In order to post comments, you must be a registered user of MiamiHerald.com. Your username will show along with the comments you post. Thank you for taking the time to offer your thoughts.


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