Same-sex couple stonewalled day before they were to bring home adoptive daughter

Ashley and LaNisha Davis of Purvis were set to pick up their foster child from Forrest General Hospital in Hattiesburg on March 3, just two days after she was born.

They received paperwork March 1 from Mississippi Department of Child Protection Services showing the newborn had been placed into their care as family and friends started buying new clothes and toys.

The biological mother had signed away her parental rights, Ashley said, and the Davis' caseworker told them they could start the adoption process immediately.

The couple visited and held their soon-to-be daughter, even took pictures, on March 2.

On their way home from the hospital, the women received a call from CPS. The Youth Court judge had changed his mind.

Ashley said the woman on the other end of the phone raised her voice, saying, "You're not going to get that baby."

The couple lives in Lamar County. The woman on the phone told them Forrest County Youth Court Judge Mike McPhail wanted the baby to stay in Forrest County. LaNisha is active-duty military, and the couple plans to move to New Mexico in May.

"We already told them we would stay behind until the adoption is finalized. We would do anything we need to do. We would move into an apartment in Forrest County if that's the case," Ashley said.

CPS does have a policy requiring that foster children be placed in their home county or within 50 miles of the home from which they were taken. The Davis' Purvis home is within 50 miles of Hattiesburg.

Ashley said she never could argue her case because administrators at the Jackson and local CPS offices stopped returning calls.

"We didn't hear from anyone. Everyone was ignoring us. We were waiting for over an hour, sitting in the (Forrest County CPS) office with someone who didn't know what was going on," Ashley said. "The social worker said she didn't understand why and said this has never happened before."

"That made us feel like we were being discriminated against," she said.

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In a state that has long denied marriage and adoption rights to same-sex couples, the Davises think the resistance they've faced is because they're both women.

It's only been two years since the state began allowing same-sex couples to adopt — or at least stopped outright denying adoption to same-sex couples.

"They have no choice to do what the law says." That was Ashley's attitude after the U.S. Supreme Court recognized same-sex marriage in 2015 and a federal judge struck down Mississippi's ban on same-sex adoptions in 2016.

The judge found the adoption ban unconstitutional, saying it "obviously targets married gay couples and limits their rights." The state chose not to appeal.

Newly confirmed CPS Commissioner Jess Dickinson, a former state Supreme Court justice, wrote the dissent in the state's same-sex divorce case, suggesting the landmark U.S. Supreme Court decision on gay marriage, Obergefell v. Hodges, had "no basis in the Constitution or (United States Supreme Court) precedent."

Dickinson, who heads the agency that oversees placement for abused and neglected children, later said his dissent had nothing to do with his stance on same-sex marriage.

A CPS spokesperson said the agency does not collect data on sexual orientation or whether a married couple is same-sex when it comes to foster parents or adoptive parents, so it's difficult to estimate how many same-sex couples have had success becoming parents through CPS since the ban was lifted.

Dickinson told the Clarion Ledger in March that he didn't even know the state used to have a same-sex adoption ban but that regardless, his agency doesn't discriminate.

"That's a legal call. They have a legal right to do it," Dickinson said of same-sex couples adopting. "I would never take any action whatsoever to prevent a same-sex couple from being a foster parent or from adopting a child because the law doesn't allow me to do that."

CPS doesn't have full control over where a child goes — judges across the state do. Judge McPhail did not return calls to the Clarion Ledger, but it is not common for judges to discuss their cases or decisions.

The Davises have wanted children for five years, about as long as they've been married, but they really focused their efforts after same-sex adoption became legal in the state. They always planned to adopt, but after not getting any calls from CPS for babies available for adoption, they switched to a foster-to-adopt plan.

They were officially certified as foster parents in January 2017. Caseworkers told the Davises they were the first same-sex couple to receive foster care certification in Forrest County.

"The one chance they had to do right by the law, they just shut us down. They didn't even give us an option to try and fight it," Ashley said.

Despite hurdles for the LGBTQ community, Mississippi has actually led the nation in the highest proportion of same-sex couples raising children, nearly 30 percent according to a 2014 report from the Williams Institute, a research group out of UCLA School of Law that focuses on sexual orientation and gender.

The Davises aren't the only ones who feel they lost the child because of discrimination. A week after CPS began stonewalling them, Ashley said she found an anonymous letter in their mailbox that she thinks is from someone at the agency.

"Please contact the following people who may be of some help to you," the letter reads, followed by the contact information for Roberta Kaplan and Susan Hrostowski. Kaplan is the attorney who fought Mississippi's same-sex marriage ban, and Hrostowski is a University of Southern Mississippi professor of Social Work and was a plaintiff in the same-sex adoption case against the state.

The couple reached out to an attorney but were told they don't have grounds to challenge the judge's decision. Ashley also said they're not up for a multi-year legal battle.

Another attorney raised the Davises' concerns with Dickinson. Because the agency is bound by confidentiality, Dickinson could not comment on the case.

Mississippi may not be able to deny adoption to same-sex couples, but that's clouded by a law passed in 2016 called the Protecting Freedom of Conscience from Government Discrimination Act, or House Bill 1523.

The law says the state shall not punish any religious organization that provides foster care or adoption services because the organization "declined to provide any adoption or foster care service, or related service, based upon or in a manner consistent with a sincerely held religious belief or moral conviction."

In Michigan, same-sex couples say they've faced discrimination and been turned away from private adoption agencies on the basis of religion. Michigan contracts with these organizations to place children in the state's foster care system into homes.

The American Civil Liberties Union is suing on behalf of the couples, alleging that by allowing the contracted agencies to deny services to same-sex couples, Michigan is violating the equal protection clause of the 14th Amendment.

Mississippi handles adoptions through the state foster care system itself, but it does contract out some training services — required to become a foster parent — to private agencies.

The contractors who provide training in Mississippi — Mississippi Community Education Center and Family Resource Center of Northeast Mississippi — have nondiscrimination policies that include sexual orientation.

A host of faith-based organizations contract with the state to certify foster parents for therapeutic and respite care, such as for children with special medical, emotional or developmental issues. Southern Christian Services, for example, follows the state's requirements for licensing and does not deny services to same-sex couples.

Another state contractor, Catholic Charities, on the other hand, does not license same-sex couples for foster care, though a Catholic Charities spokeswoman, Maureen Smith, said the organization does sign the state's non-discrimination policy.

The policy — which includes protections for race, color, creed, sex, age, national origin, physical handicap, disability, genetic information, and "any other consideration made unlawful by federal, state, or local laws" — does not specifically include that discrimination based on sexual orientation is prohibited.

Smith said the couples have other options for licensing.