87
Neglected Lesbian Mothers
NANCY D. POLIKOFF*
Introduction
In June of 2013, Hilda left her two-year-old and ten-month-old children
with her partner Joanne while she went to work.1 Joanne injured the
two-year-old, Robert, and both children were removed by the Kansas
Department for Children and Families (DCF).2 After a short stay in foster
care, the children were placed with Hilda’s mother and her husband.3 The
family reunication efforts were provided by St. Francis Community
Services, a faith-based agency under contract with the state.4 Hilda
testied, and there was no denial by the agency, that a case worker asked
her if she would ever go back to “loving a man” and told her she needed
to be “xed” so that she did not pass her same-sex “preference” on to
1. In re R.M., Nos. 115, 945; 115, 946, 2017 LEXIS 365, at *1 (Kan. Ct. App. May 12, 2017).
2. Id. at *5, *6.
3. Id. at *6. (The names of the family members are not contained in the opinion and have
been selected for ease of reference).
4. Brief for Appellant at 2, In re R.M., Nos. 115, 945; 115, 946 2017 LEXIS 365 (Kan. Ct.
App. May 12, 2017) (Nos. 2013-JC-30, 2013-JC-31), 2016 WL 7215332.
* Professor of Law, American University Washington College of Law; Visiting Scholar,
The Williams Institute, UCLA School of Law. I beneted from comments of many colleagues,
including Courtney Joslin, Ann Shalleck, Joseph DeFilippis, and Jordan Blair Woods, and from
the research assistance of Deidre Dixel (WCL ’18), Elizabeth Smithwood (WCL ’18), and
Sunney Poyner (UCLA ’19).
Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
88 Family Law Quarterly, Volume 52, Number 1, Spring 2018
her children.5 Hilda complained about the agency bias.6 Two years later,
the trial court terminated Hilda’s parental rights.7 The appellate court,
upholding the termination, made no reference in its opinion to Hilda’s
testimony about what agency personnel said to her regarding her sexual
orientation and rejected her argument that the agency website indicated
that it was imposing its Christian religious principles upon her.8
Hailey and Jane met in a homeless shelter in Wichita, Kansas, and
soon after moved into a trailer with their children, including Hailey’s six-
year-old son, Jayden.9 Jayden always thought of himself as a girl.10 She
named herself Hannah at age ve and wore nail polish to school in the
second grade.11 Hailey and Jane had never heard the word “transgender,”
but they found an LGBT-positive church, where they took Hannah and
where she could be herself.12 Meanwhile, one of Jane’s children, Bryan,
was showing signs of serious mental health problems.13 Jane wanted help
for him and, without access to private resources, she called the state social
service agency to try to get him treatment.14 Bryan complained to the
social worker about his mothers and said, among other things, that they
encouraged his brother to wear dresses.15 The social worker interviewed
Jayden at school and immediately took the child into state care.16 The
paperwork presented to the court said that Jayden’s mother had a female
partner and that therefore, he was subject to “more confusion and social
difculties than other children.”17 The judge ruled that Jayden should be
5. Id. at 2, 3.
6. Hilda led a petition for habeus corpus alleging that the state was preventing her from
seeing her children because she was in a same-sex relationship. The trial court dissolved the
writ as premature, a decision that was upheld by the Kansas Court of Appeals. In re R.M., No.
114,004, 2016 LEXIS 132, at *3, *4 (Kan. Ct. App. Feb 19, 2016).
7. In re R.M., Nos. 115, 945; 115, 946, 2017 LEXIS 365, at *9 (Kan. Ct. App. May 12,
2017).
8. Id. The written opinion in this case contains information that could be sufcient to
justify the trial court’s rulings. The mother’s claims of sexual orientation bias, however, were
not adequately developed and addressed, and it is therefore impossible to determine if such bias
played a role in her loss of parental rights.
9.
andrew solomon, Far From the tree: parents, Children, and the searCh For
identity 646, 647 (2012).
10. Id. at 646.
11. Id. at 646–47.
12. Id. at 647.
13. Id. at 648.
14. Id.
15. Id.
16. Id.
17. Id.
Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Neglected Lesbian Mothers 89
placed in a foster home with “healthy parents.”18 The state social worker
repeatedly said, “[w]e’re not giving this child back to lesbians.”19
In Fairbanks, Alaska, in 2011, Gloria and Alice decided to start a family.
Same-sex marriage was not yet legal in the state. Gloria gave birth to Kate
in 2012 and to Anthony in 2013. Gloria worked outside the home and
Alice was the children’s primary caregiver. The Ofce of Child Services
became involved with the family in response to concerns about Alice’s
physical discipline of the children and removed them in May 2014.20 The
petition named only Gloria as a parent. Gloria’s court-appointed counsel
argued that Alice should be made a party and appointed her own lawyer.
Alice led a pro se motion to that effect as well. The judge refused. The
couple married a few months later and Alice led a second motion, which
was again denied. Alice and Gloria obtained new birth certicates for
their children naming both of them as parents pursuant to a regulation
permitting such an action for newly married lesbian couples who could
show they were together when their children were born. Alice led another
motion, as well as a motion to intervene, and again those were denied.
Gloria at all times supported Alice’s motions. Two years later, Gloria’s
parental rights were terminated after a trial from which Alice was largely
excluded.21
Jann and Jamie made a decision to raise a child.22 They chose Jamie to
bear the child based on health concerns.23 When Jerome was two months
old, the couple married.24 After they split up, Jann led a petition for joint
custody.25 The court found that Jann had no standing under New York
law to claim custody or visitation rights.26 Jamie later moved in with a
boyfriend. When Jerome was just under three, he showed up to daycare
with red marks and bruising consistent with being slapped hard on both
18. Id.
19. Id.
20. The facts and procedural history of this case are found in the mother’s brief to the Alaska
Supreme Court. Opening Brief of Appellant, G.W. v. Alaska, No. S-16516 (Mar. 16, 2017)
(unreported; on le with author).
21. After G.W. led her brief in the Alaska Supreme Court, the state stipulated that the trial
court’s failure to recognize Alice as a parent was an error, and the parties stipulated to vacating
the termination of Gloria’s parental rights and remanding for proceedings in which Alice would
also be treated as a parent. Stipulation to Remand, G.W. v. Alaska, No. S-16516 (Alaska Sup.
Ct., Apr. 28, 2017, (unreported; on le with author).
22. See John Leland, Parenthood Denied by Law: After a Same-Sex Couple’s Breakup, a
Custody Battle, n.y. times, Sept. 12, 2014, at 3.
23. Id. at 3.
24. Id. at 4. This is a ctional name.
25. Id.
26. Paczkowski v. Paczkowski, 128 A.D.3d 968, 968 (N.Y. App. Div. 2015).
Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
