Bottoms Up Final

Bottoms Up: A Critical Review of Termination of Parental Rights Focusing on the Lesbian Mother

By Michael Wade Jackson1 SMU Dedman School of Law

Graduating 3L

Submitted May 3, 2006

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Michael Wade Jackson is a candidate for Juris Doctor (JD) at SMU Dedman School of Law. He has a Bachelor of Science (BS) in Biochemistry & Cell Biology from the University of California, San Diego and has attended the University of Bristol (Bristol, England) with a focus on British Criminal and Public Law. Mr. Jackson is a member of AIPLA, ABA, TCDLA, NCDLA, NOW, NAACP, & Human Rights Campaign. Mr. Jackson desires to pursue the intersection of Law and Society with a focus on fringe groups and under-represented individuals as well as the dynamics of race and sexuality.

Critical Race Theory

Spring 2006 SMU Dedman School Of Law Michael Wade Jackson 10621674 Introduction: Mary’s Story

The impetus for this article is the story of Mary 2 . Mary is a twenty six year old mother of one who lives currently with her parents in Arlington, Texas. Mary has been pregnant twice in her life. The first ended by a non-consensual abortion at fourteen and the second leading to the birth of her five year old daughter, Stephanie 3 , at the age of twenty one. Mary desires to leave home and begin a life of her own with her daughter. This does not seem to be an unreasonable aspiration for a twenty six year old mother. However, the issue that preys on Mary’s mind is that her mother will seek to obtain custody of Stephanie and terminate her parental rights and access to her daughter. Mary therefore continues to live in a household where she is ridiculed for her sexual preference and the days are approaching when Stephanie will begin to ask about her father and her mother’s girlfriend Rian 4 . What questions does the story of Mary raise and why should it be the subject of a critical analysis of Family law as it applies to the Lesbian Mother 5 ? The Lesbian Mother is in an awkward position within the jurisprudence of United States and as well of the

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Writer’s Note: Names have been changed to protect the identity of the individual involved. It seems inappropriate to be concerned with anonymity but it is a harsh reality, as this paper will address, that being an out lesbian mother may and sometimes is sufficient grounds to terminate parental rights. Mary is a real person with a real 5 year old daughter that was a part of my life during most of 2005. 3 Writer’s Note: Stephanie is the product of a very common story within the lesbian community that I have been exposed to over the past 15 months in the Dallas/Fort Worth Lesbian Culture. Mary tells the story of Stephanie’s conception as a night at which she was mad at her then girlfriend and proceeded to sleep with a man. She does state that she used condom, however that proved to be ineffective. 4 Writer’s Note: The relationship with Rian as of writing of this paper has been official for approximately 5 months not including the phase in which Mary and Rian met which was an additional 2 ½ months. This relationship is not novel within the lesbian community however it does appear that Mary and Rian are very serious about their relationship. Rian baby-sits for Mary and as well Rian is in contact with Stephanie for lengthy periods of time. For insight into this relationship and the author see http://www.honorarylesbian.blogspot.com 5 Writer’s Note: There is debate within me about the appropriate term for the class which I suggest should be recognized within Queer Theory. I state “lesbian mother” however does this encapsulate non-biological mothers, where as the use of the term “biological lesbian mother” seems to me to be overkill on a concept that with reference to a “lesbian mother” it would be assumed that the child is biological offspring.

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sister nation of Canada 6 . This position is one in which the sexual identity of the lesbian mother is repressed or closeted in order to prevent the termination of parental rights of the mother by either the biological father or a third party that wishes to have sole custody 7 . But what happens when the Lesbian Mother is OUT does not want to a live a life in hiding and does not want to keep her life-style a secret from her child and the world 8 ? It is this intersection between what used to remain a closeted existence and the move to freely express one’s sexuality within society and the law with regard to the termination of parental rights that is the focus of this paper. The most discussed case on point in this arena is Bottoms v. Bottoms 9 which will be reviewed within this paper. Furthermore, being as the story of Mary is based in Texas it is imperative to review the Texas Statutes 10 surrounding the grounds for the termination of parental rights and the manner in which the petition would be plead. Finally it is important at the outset to state what this paper will discuss and what it will not. This paper is focused primarily on the desire of a third party to gain custody of a

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Writer’s Note: The relevant jurisprudence and anecdotal evidence of the struggle surrounding custody of children of Lesbian Mothers is present in the United States, however Canada provides significant additional resources because the struggle for the recognition and demarginalization of the Lesbian Mother pre-dates the United States by 10 years. 7 See Sibyl Frei, Protecting Our Lesbian Family in Lesbian Parenting: Living with Pride & Prejudice 154, 156 (Katherine Arnup ed., 1997) (1995). Discussing the need to stay closeted in her previous community to avoid the biological father from seeking custody of her child while she was living in an open lesbian relationship in another part of Canada. See Also: Karen Andrews, Ancient Affections: Gays, Lesbians & Family Status in Lesbian Parenting: Living with Pride & Prejudice 358, 368 (Katherine Arnup, ed., 1997) (1995). Stating that “Generally speaking lesbians and gay men do not exist.” and “Few lesbians and gay men live lives free of hiding.” 8 Writer’s Note: Mary lives a very out life-style. However, I do not agree with the term life-style to define one’s sexual identity it is a current the most applied terminology. Examples of Mary’s desire to present herself as a Lesbian Mother is found in her identification on Myspace.com as a lesbian, affiliation with Dallas Area Lesbian Groups, and attendance at Chick Happy Hour ( once monthly event which allows for women who like women to meet and mingle and talk about issues in the community while enjoying an evening at a Dallas area bar). Mary is also OUT to her family and has faced ridicule from her mother as well as her sisters for this desire to be upfront and proud of her sexual preference. 9 See Bottoms v. Bottoms 444 S.E. 2d 276 (Va. Ct. App. 1994) rev’d 457 S.E.2d 102 (Va. 1995). 10 See Phoebe Knauer Et al. Grounds for Termination of Parental Rights in State Bar Section Report Family Law (John J. Sampson, ed. Vol 2002-2 Fall, 2002). Discussing the Statues in Texas and a more practical approach to the analysis and pleadings involved in a termination of parental rights case.

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child from the Lesbian Mother while mentioning the difference between the termination of parental rights between biological parents and third parties. This paper will not discuss the lack of recognition of individuals such a Rian, who under the current trend in US jurisprudence and public policy 11 does not have the ability to be identified as the parent of Stephanie, also known as the non-biological lesbian mother. This paper will discuss the need to recognize the Lesbian Mother as an identifiable category of its own right within Queer Theory 12 similar to the position advanced by Kimberle Crenshaw in her work on the Black Female 13 . Finally one may ask themselves what is the importance of the recognition or discussion of the Lesbian Mother, there can not be that many. This however is not reality. “Widely cited figures suggest that ten percent of women are lesbians and the between twenty and thirty percent of lesbians are mothers. 14 ” While this information is dated I would suggest that this number is not on the decline as the acceptability of being OUT the number of women that identify as a lesbian is on the rise 15 . Similarly, “Some lesbians have children from a previous marriage or partner, or as part of a lesbian relationship. Today, more and more lesbians are opting to get artificially inseminated and raise a family. 16 ”

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Writer’s Note: The majority of US states do not recognize same sex adoption. Specifically Florida and New Hampshire prohibit the adoption of a child by same sex couples and/or homosexual individuals. See Florida Stat. § 63.042 (3) and N.H. Rev. Stat. Ann. § 170-B:4. There is also a significant resistance within the jurisprudence to recognize the rights of a non-biological same sex partner, especially when the child was the product of a heterosexual sexual encounter. 12 Queer Theory is a subdivision of Critical Theory and Critical Studies 13 See Kimberle Crenshaw, Demarginalizing the Intersection of Race & Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics 1989 University of Chicago Legal Forum 139-67 (1989). Reprinted in The Politics of Law: A Progressive Critique 195-217 (2nd ed., edited by David Kairys, New York: Pantheon, 1990). 14 Katherine Arnup, Introduction in Lesbian Parenting: Living with Pride and Prejudice vii, xii (Katherine Arnup, ed. 1997) Citing Ellen Herman, The Romance of Lesbian Motherhood in Sojourner: The Women’s Forum 12, (March 1988). Other estimates range as high as six to ten million lesbian mothers. 15 See Associated Press, More Women Experimenting with Bisexuality, available at http://www.msnbc.msn.com/id/9358339/ accessed on 3/21/2005. 16 Wendy Caster, The Lesbian Sex Book: A guide for women who love women 33 (Rev. by Rachel Kramer Bussel 2003).

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Case Law & Legal Test: Bottoms v. Bottoms & Texas Family Law Bottoms v. Bottoms 17 The crux of the Bottoms Case involves the desire of Tyler Bottoms maternal grandmother to terminate the rights of his biological mother who was an admitted lesbian. The case was appealed all the way to the Supreme Court of Virginia which reversed the holding of the appellate court which returned custody of Tyler Bottoms to his mother Sharon Lynne Bottoms. Trial Court This case involved the relationships of one Sharon Lynne Bottoms. Ms. Bottoms who has been in relationships with both men and women finds herself faced with the loss of custody of her son Tyler Doustou.

The trial court held that there was “clear and

convincing” evidence to support neglect and/or abuse by Sharon Bottoms (Mother) and that custody should be awarded to Pamela Bottoms (Grandmother), however the trial court supported its award of custody on three factors. Predominately the trial court discussed the homosexual lifestyle of Sharon Bottoms and Ms. April Wade. The trial court went so far as to state: I will tell you first that the mother’s conduct is illegal. It is a Class 6 felony in the Commonwealth of Virginia. I will tell you that it is the opinion of this Court that her conduct is immoral. And it is the opinion of this court that the conduct of Sharon Bottoms renders her an unfit parent 18 . The trial court was provided with the lengthy relationship history of Ms. Bottoms and the current relationship with a Ms. April Wade the live-in lesbian lover of Ms. Bottoms. The trial court based its determination of custody as well on the desire to prevent Tyler from facing the “social condemnation” that was inevitable in growing up in such a relationship 17

See Bottoms v. Bottoms 444 S.E. 2d 276 (Va. Ct. App. 1994) rev’d 457 S.E.2d 102 (Va. 1995). See Bottoms v. Bottoms 457 S.E.2d 102 at 109 (Va. 1995). Dissenting opinion of Virginia Supreme Court 18

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and other evidence of the child’s best interests not being favored such as Tyler standing in a corner upon return to the grandmother’s house and his cursing at an early age 19 . Appeal On Appeal Sharon Bottoms challenged the award of custody and asserted that her lifestyle was not able by itself sufficient to lead to termination of parental rights 20 . Furthermore the Court of Appeals spent significant time addressing the difference between a custody fight between parents and a third party. Under the approach in the Commonwealth of Virginia the right to custody between biological parents is based on a determination of the child’s best interests combined with the parents’ ability/quality of care. The parents are therefore on equal footing in the dispute 21 . However, when the dispute is between the biological parent and a third party there is a rebuttable presumption in place which holds that the bond between biological parent and child is not to be upset unless there is clear and convincing evidence of neglect and/or abuse 22 . The appeals court held that the trial court improperly terminated the rights of Sharon Bottoms and remanded for the trial court to restore custody to Sharon Bottoms.

Virginia Supreme Court The Virginia Supreme Court took the case on appeal by the grandmother and re-instated the initial custody award by the trial court. The Court held that the Appeals Court did not give appropriate deference to the fact finding of the trial court and furthermore there was

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See Id.at 109. See Doe v. Doe 284 S.E.2d 799 at 806 (Va. 1981). Holding that a lesbian mother is not per se an unfit parent. 21 See Bottoms 444 S.E.2d 276 at 280 (Va. Ct. App. 1994) Citing Wilkerson v. Wilkerson 200 S.E.2d 581, 583 ( Va. 1973) Holding for the proposition that biological parents are on equal footing in a custody dispute without a presumption in favor of the biological mother. 22 See Id. at 281. 20

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clear and convincing evidence of the unfitness of Sharon Bottoms as well as the recommendation of the guardian ad-litem of Tyler that he should be placed in the custody of his grandmother 23 .

The opinion is however plagued with a return to references

concerning the life-style and behavior of Sharon Bottoms and her rather low level of interaction with her son 24 . Conclusion The sterile reprisal of the outcome in the respective forums does not include the repeated references to the sexual preference of Sharon Bottoms, nor to the condemnation that seems to be evident in the proceedings. The Supreme Court of Virginia goes to great lengths to justify the opinion on other grounds than the sexual preference of Sharon Bottoms but at the same time it states at the heart of the opinion that “Conduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth … thus, that conduct is another important factor in determining custody.” ….”And we shall not overlook the mother’s relationship with Wade, and the environment in which the child would be raised if custody is awarded to the mother. 25 ” Therefore, this return to the sexual preference of the Lesbian Mother only furthers the need to address this issue within the US legal system. Pamela Bottoms (grandmother) had live in boyfriends while Sharon was growing up and Sharon is the baby of one such live in boyfriend. It seems that the Virginia Supreme Court may have a similar distaste when it comes to the effects of adolescence and growth within a homosexual relationship. 23

See Bottoms 457 S.E.2d 102 at 108 (Va. 1995). Writer’s Note: Sharon Bottoms is no angel – she did leave Tyler with his grandmother on many occasions and spent relatively 30% of her time with her some with the rest of the time 70% being spent in the care of the grandmother. Sharon also does not have a high school education and is unemployed during the pendency of the case. April Wade, Ms. Bottoms lesbian lover, is employed sporadically and she also does not have a high school education. April Wade is however the breadwinner of the group. The grandmother is also no model citizen. Sharon Bottoms is the product of a live in boyfriend of Pamela Bottoms and this boyfriend was an absent father after her birth. This family definitely appears to live at the bottom of the socio-economic scale surviving on the kindness of others and living from paycheck to paycheck. 25 See Bottoms 457 S.E. 2d 102 at 108 (Va. 1995). 24

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Texas Family Law Review: Application to Mary Texas Family law The Texas Family Law concerning the termination of parental rights closely mirrors the standards applied in Bottoms however Texas the scheme is a little different 26 . In Texas, termination of parental rights requires clear and convincing evidence (1) of a statutory termination ground, and (2) that termination is in the best interest of the child 27 . Furthermore the best interests of the child are determined by the Holley test which looks at many factors to determine if termination of rights of biological parent is in the best interest of the child 28 .

However, the best interest analysis is only one half of the

determination to be made under statute. The next part concerns the presence of statutory termination grounds. The most likely statutory termination ground when it comes to Lesbian Mothers would be endangerment 29 . Endangerment is defined by the Texas Family Code as where the parent either (1) knowingly placed or knowingly allows the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, OR (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being

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Writer’s Note: The difference between Texas and Virginia is the result of the United States Supreme Court holding that “clear and convincing evidence” is required to terminate but that States may set standards above this minimal level. See Santosky v. Kramer 455 U.S. 745 (1982). 27 See Phoebe Knauer Et al. Grounds for Termination of Parental Rights in State Bar Section Report Family Law 6 (John J. Sampson, ed. Vol 2002-2 Fall, 2002). Citing Tex. Fam. Code § 161.001 28 See Id. at 7 Citing Holley v. Adams 544 S.W.2d 367 (Tex. 1976) The Holley Test includes in assessing the best interests of the child – the desires of the child – the emotional and physical needs of the child now and in the future – the emotional and physical danger to the child now and in the future – the stability of the home – and others. 29 See Id. at 11 (Discussing Endangerment – which is § 161.001(1)(D) or § 161.001(1)(E) of the Tex. Fam. Code

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of the child 30 . This endangerment ground seems like the most likely candidate to be used against a Lesbian Mother 31 . Application to Mary Mary is not a role model when it comes to being a parent and her lifestyle outside her sexual preference may present a problem when it comes to the issue of endangerment. Mary is currently unemployed. Mary has been an exotic dancer, and was previously a bartender at a strip club. Mary leaves her daughter Stephanie primarily in the care of her mother as well as utilizes day care programs offered by the State. Mary however unlike another acquaintance of mine, Lauren, does not allow her daughter to be around an environment in which drugs are used. This is not an absolute rule as Stephanie has been around individuals that do use marijuana quite frequently. However, Mary does strive to keep Stephanie in an environment conducive to her own personal growth. So how would Mary’s parents seek to have custody of her daughter? Most likely Mary’s Mother would approach the courts claiming that she spends a majority of the time with Stephanie and that it is in the best interest of the child that she remain with her grandmother. Furthermore, Mary’s Mother could assert that Mary endangers Stephanie by exposing her to the personal relations between Mary and Rian. Mary and Rian are affectionate in front of Stephanie but do not bring act inappropriately in front of Stephanie.

However, what about the emotional harm that may be presented by a

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See Id. Writer’s Note: The determination that endangerment under Texas law would be the most likely ground for termination of parental rights is based on the lifestyle of Mary and other individuals with whom the writer is familiar. Mary is very careful to not expose her daughter Stephanie to deleterious influences however she has no steady job history, has a high school diploma with some college completed, and has previously worked as a bar tender and an exotic dancer. However, this can be contrasted with another example of a mother named Lauren who exposes her daughter to an environment were the use of marijuana is present, where the needs of the child are not always addressed such as a shortage of diapers or food, and where the parent leaves the child unattended with friends that also engage in dangerous conduct. Lauren may or may not expose her daughter, who is 10 months old, to lesbian sexual acts. 31

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homosexual relationship. This most likely will be asserted by Mary’s mother in an attempt to gain custody. If the State of Texas follows the trend in Virginia more likely that not the probable outcome of the custody dispute will favor the termination of the parental rights of Mary 32 . Is this appropriate? Why should the sexual preference of the Lesbian Mother be a factor? Finally the question is raised why does Mary herself not seek to use the legal system to pre-empt actions by her mother in the interest of her daughter. Well with reference to a handout on protecting families in same-sex relationships it is mentioned that resorting to the legal system should be a last resort 33 . Also the financial cost of litigating this complex issue is overwhelming to a twenty six year old mother and outside her financial means. So in most cases, especially like Mary, the Lesbian Mother is forced to remain in the parental home in order to maintain custody of her child. Lesbian Mother: Is the Lesbian Mother a sufficiently identifiable class of individual that requires recognition within critical theory to allow for the protection of identifiable rights of the mother and child? My answer to this question is a resounding YES! Furthermore there is extensive discourse on the subject of childhood and the effects of same sex relationships on the development of children 34 , 35 . The most interesting critique to be found is that

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Writer’s Note: There are many websites and resources dedicated to homosexual parents. One site that is particularly helpful is http://www.colage.org (Children of Lesbians and Gays Everywhere) and this site provides a handbook on protecting the right of the parents and the children located at http://www.colage.org/resources/custody.pdf . There are also other organizations such as the Family Pride Coalition located at http://www.familypride.org 33 See Protecting Families: Standards for child custody in same-sex relationships available at http://www.colage.org/resources/custody.pdf 34 Deborah M. Henson, Lesbian Feminist Critique of Susan Okin’s Justice, Gender, and the Family: Lesbian Families with Children as a Non-Heterosexist model for the development of morality and Justice, 4 Hastings Women’s L.J. 249 at 251 (1993). ( This article challenges the requirement that the homosexual couple or parents be compared with the heterosexual dynamic)

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parenting in same sex couples to date is compared and contrasted with the heterosexual model as the ideal 36 . This is disconcerting and calls into questions the appropriateness of applying a heterosexual dynamic to modern parenting. It was not that long ago that single parents were considered unfit. Today this would seem absurd. What about the legal inability of Lesbian Mother’s to marry and move out of the identified group of single mothers. Remember, that marriage alone to a same-sex partner can still not keep a third party or the biological father from challenging custody. The biggest argument against the Lesbian Mother is a more generalized argument against the supposed harm that a child may endure in a homosexual family. This has been seen in both the Supreme Court opinion in Bottoms and as well in the mainstream analysis of gay adoption and gay parenting. However, a recent study has shown that there are differences in the outcomes of children in gay and lesbian families and that even with these differences that the children in gay and lesbian families have no greater a propensity to be homosexual than children growing up in heterosexual families 37 . So with this new research combined with the social stigma associated with identification as a homosexual and the historical need to keep one’s self closeted to maintain custody of biological children it would seem appropriate that the LESBIAN MOTHER be identified as a group within critical theory.

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David L. Chambers, Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 Fam. L.Q. 523 (1999). 36 Ruthann Robson, Our Children: Kids of Queer Parents & Kids who are Queer: Looking at Sexual Minority rights from a different perspective, 64 Alb. L. Rev. 915 (2001). This article considers the benefit of queer children being raised in a home that is accepting of there choice and also looks at adoption as well as biological children. 37 See Erin O’Briant, Do Kids raised by lesbians turn out different, The Family Tree: a publication by the Family Pride Coalition, Spring 2001 available at http://www.familypride.org/atf/cf/{2A2C5E24-92CC41DF-B4AA-448C71B7ED7D}/LIBRARY_SPRING01.PDF

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CONCLUSION Mary’s story is one which is not easy to accept. The idea that a LESBIAN MOTHER, a biological mother, can be stripped of her rights to her child simply for her sexual preference seems to call into question the state of family law within the United States.

Furthermore, it appears that the Lesbian Mother is a group which should

rightfully have a place within critical theory independent of the label of Lesbian or Homosexual. The Bottoms case presented the lingering bias towards a homosexual lifestyle present within the court systems of Virginia. The Texas law seems to have a similar ability to take away custody of a child from the Lesbian Mother because she is outwardly affectionate to her lover. But does this not seem absurd when homosexuality should be tolerated if not accepted in society. A heterosexual couple can openly kiss in front of their children and more likely than not it is encouraged. This is an absurd result and that law needs to catch up with the times. Mary’s voice is not heard – this is because her voice is typically silenced by fear, monetary requirements of litigation, and the public condemnation that her sexual preference and life-style present in this homophobic culture. The evidence is present to support that children that grow up in homosexual household have no greater propensity for homosexuality than a heterosexual household leading one to ask what makes a Lesbian Mother unqualified to raise her child than the mere fact that she is a Lesbian. The answer to this question seems obvious – that society still attaches a stigma to homosexuality and even though it is not a per se disqualification of fitness to be a parent under the law, but in practice is rips children from their biological parents a most improper outcome.

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