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Utah asks appeals court to block judge's orders in adoption cases

Published April 10, 2014 7:40 am

Despite judge's orders, Department of Health refuses to issue new birth certificate for same-sex couple's child.
This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The state is asking the Utah Supreme Court to block orders of judges who approved adoptions for married same-sex couples so they are not able to get amended birth certificates for their children.

Attorneys for the Utah Department of Health's Office of Vital Records and Statistics say in petitions filed Monday and Wednesday that 3rd District Judge Elizabeth A. Hruby-Mills "abused [her] discretion" by approving an adoption for one couple and ordering the agency to issue a new birth certificate for their child.

In another adoption, this one approved by 3rd District Judge Andrew Stone, state attorneys argue the judge "erred' by recognizing the couple's same-sex marriage as valid.

Hruby-Mills approved the adoption on Feb. 13 and Vital Statistics received a request for an amended document listing both parents in the mail on April 4.

The state's petition says Hruby-Mills' order violates "the plain text of the Utah Constitution and Utah law prohibiting recognition of same-sex marriage."

One petition asks the court to stay the order and the other requests a hearing on the validity of the adoption decisions.

The Office of the Utah Attorney General said in a statement Wednesday that the judge, rather than the adoptive parents, must file a response to the petitions.

"Without guidance from Utah's appellate courts, compliance with the court order before the federal courts rule is likely to create more uncertainty in Utah law and for Utah families," the statement said.

Attorney Laura Milliken Gray, who represents several same-sex couples trying to do second-parent adoptions said Wednesday that her clients are "floored and dismayed" by the state's "extraordinary steps to undo the adoption that they believed in good faith was fully completed."

"My clients, and others in their same place, feel as if the AG's office is pummeling them at this point by actively interfering with their private adoption cases and taking the outrageous position that the Department of Health can ignore a district court order," Gray said.

Equality Utah also issued a statement Thursday calling the state's action "a bombshell" that leaves thousands of Utah children vulnerable.

"This is unheard of and very disappointing," said Brandie Balken, executive director of Equality Utah. "The state is asking the Utah Supreme Court to tell them they don't have to follow the orders of judges who have granted adoptions. Enabling all children to become a part of permanent, lifelong families should be a defining goal of our state."

An unknown number of same-sex couples who married after Utah's Amendment 3 was overturned subsequently filed second-parent adoption petitions. Adoption proceedings are private and records are not listed on the court's docketing system.

But according to several attorneys for same-sex couples, some judges asked them to notify the Utah attorney general's office of the proceedings. The attorney general's office filed opinions in those cases asking the judges to dismiss the petitions or have the couples withdraw them until there is a final resolution of its appeal contesting U.S. District Court Judge Robert J. Shelby's Dec. 20 ruling that the ban on same-sex marriage is unconstitutional. The 10th Circuit Court of Appeals is set to hear arguments in the case Thursday morning.

Same-sex marriages in Utah were halted on Jan. 6 by the U.S. Supreme Court, which granted the state's request for a stay. Two days later, Gov. Gary Herbert directed state agencies to not provide benefits or otherwise recognize any of the approximately 1,200 same-sex marriages performed in Utah during that 17-day window.

In at least a handful of adoption cases, judges determined the marriages were valid at the time they took place and the couples thus had vested rights in those marriages. A different judge who approved an adoption also found the attorney general's office had not properly intervened or taken appropriate action to stop an adoption.

Kimberly and Amber Leary have an adoption petition that was finalized by Judge Stone. However, the Office of Vital Records and Statistics refused last week to issue an amended birth certificate for their 16-month-old daughter. They tried again Wednesday, spending two hours at the Department of Health, where they met with Director David Patton.

Kimberly Leary said Patton told them the state plans to appeal the adoption decree granted by Stone, though no appeal has been filed in the case yet.

"We came here today with a court order directing the state to issue an amended birth certificate for our daughter, and we really hoped the state would comply with the judge's order," Kimberly Leary said Wednesday. "That didn't happen. Instead, the state that we love, that we choose to live in and work so hard for, has again chosen to actively work against our family. It's upsetting and disappointing."

In its petitions, the state said because neither it nor the health department was a party in those adoption proceedings, it could not seek a stay in trial court.

Gray said the state had other options than going to the Utah Supreme Court.

"The state has known about these adoptions and could have filed for declaratory relief and not gone the "emergency" route," she said. "My clients feel that the state is intentionally bullying them."

But attorneys for Utah say the judges' orders are contrary to the law now in effect,which says the state "will not recognize, enforce, or give legal effect" to any law that gives marriage rights to same-sex couples. Without a stay, the department, the couple and Utah's law will experience "significant harm," the petition said.

"If the Department of Health does not comply on the grounds that the judge has abused his discretion by issuing an order that violates the Utah Constitution and its laws, the Department of Health, and its agents, face the possibility of contempt sanctions," the petition filed against Hruby-Mills states.

And if the department complies with the order, it will be violating Utah law and the couple may be harmed by "wrongly" relying on an "illegally-issued birth certificate for other benefits and protections not provided by Utah law."

Those benefits include being able to provide health insurance for the child, and having both parents able to make medical decisions and tax benefits.

Although the state said that only the judges were required to respond to the petition, it was unclear to Gray what action her clients might have to take now.

"We are scrambling to respond to the state's massive court filings, but my clients do not have the money to fight the state of Utah," she said. "This is money being taken away from my clients and their children. This is causing my clients and their families extreme emotional turmoil."

brooke@sltrib.com

Twitter: @Brooke4Trib