Questions & Answers: Foster Care/Adoption Questions

Question

We were told that we were not able to adopt because of my husband's HIV status. We even inquired about a baby with HIV infection needing a home, foster care, or adoption. Again, we were told no. Do you know of any good resources that I might access?

-- Richmond, VA USA (April 25, 2000)

Answer

On the question of adoption you are probably dealing with one of two things concerning your husband's HIV status. One possibility is specific state regulations concerning adoption which may preclude individuals with terminal illnesses from being considered as adoptive parents. In this case you may want to explore whether you would be allowed to adopt as essentially a single parent. Another possibility is the interpretation given by adoption or child welfare agencies and their individual staff members to the notion of the "best interests" of the child. Generally people agree that if it is possible to avoid a situation where a child will experience another loss of a parent, that should be avoided. Your point about a child who is positive him- or herself is well taken. Although this could be a serious burden for you if you find yourself in the position of caring for a seriously ill spouse and child at the same time. Private adoption agencies sometimes have different rules from public child welfare agencies (and there is no guarantee as to which might be more conservative -- sometimes it comes down to the individual social worker.)

Interstate adoption is also an option but I believe you need first to qualify under your own state's guidelines in order to be considered by an agency in another state. You might want to find out if there are any agencies that are accepting of gay and lesbian parents as potential adoptive parents. Such an agency is clearly willing to look past the surface of things before making a decision. La Vida in Pennsylvania has a reasonable track record with non-traditional families and may be licensed to work in Virginia. (Many private adoption agencies hold licenses in multiple states.) I think they do domestic (U.S.) adoptions but you would want to check to be sure. Last year I did an in-service on HIV for a number of adoption workers in NJ. A serious question they raised was about the impact of severe parental illness (including HIV) on a child who has already experienced whatever losses brought them into the adoption situation. They would also tend to avoid an adoptive family where a parent has a terminal form of cancer, for example. Is it better to place a child in an adoptive home where there are likely to be future losses vs. leaving them in foster care? Maybe. Hard to know for sure one way or another.

You'd want to think about your spouse's health status in terms of how long has he had the virus? How has he responded to medications as they've become available? Is he very adherent to the medication regimen? Has he experienced any opportunistic infections? Which ones? How are his T-cells and virus load counts? In other words, is he relatively healthy with reasonable prospects for continuing good health? You may want to see if the Americans with Disabilities Act has any language that would be useful in making a case. Wisconsin specifically says that a person with a physical disability cannot be excluded.

You may want to consider moving to a state that does not require married partners to adopt together since a few states allow the court to "excuse" or make an exception for a spouse who is incapacitated or otherwise unavailable (Arkansas, Alaska, Connecticut, Florida, Iowa, Kentucky, New Mexico, North Dakota, Ohio, Rhode Island, West Virginia). A few states have no language about spouses at all -- Idaho, Pennsylvania, South Carolina, Washington -- but you'd want to check with an adoption attorney in those states to be sure.

Possible resources to check out for further information or for advocacy:

1. http://www.calib.com/naic/index.htm#navbar
   This is the National Adoption Information Clearinghouse site. There is great information on this site and some thought-provoking articles. Check out the information for professionals as well.

2. http://www.fpsol.com/adoption/links.html
   This is the site of the Adoption Policy Resource Center. If Steve Humerickhouse is still with this organization, he appears to be a serious legal advocate who might be able to advise you specifically about how to challenge the policy you seem to be up against.

   
   

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