Judge Discriminating Against Lesbian Parents Recuses Himself

A judge who called for the removal of a foster child from her lesbian foster parents has officially removed himself from the case following growing criticism and calls for an investigation of the judge’s practices as well as his impeachment.

Last Tuesday, Judge Scott Johansen ordered a 9-month-old baby girl be removed from her foster parents in Utah. By Friday, following mounting criticism, he reversed the order, but a hearing on Dec. 4 remains scheduled to determine what it is in the best interest of the child.

On Monday afternoon, the judge removed himself from the case. Judge Mary Manley will now preside over the case.

April Hoagland, 38, and Rebecca Peirce, 34, have been married since October 2014. They welcomed the baby girl into their home in August and hoped to eventually adopt her. According to Peirce, the baby has made significant progress since joining their family. “Within those three months, she has rolled over, she is crying and trying to talk,” Peirce said. “She is very animated.”

“[The judge] said in research he has looked at, children don’t do very well in homosexual homes, they do better in heterosexual homes,” Peirce recalled.

In his original court order, Johansen wrote, “The court cited a belief” that children raised by same-gender parents do not fare as well as children raised by heterosexual couples. However, his revised court order now says, “The court cited a concern that research has shown that children are more emotionally and mentally stable when raised by a mother and father in the same home.”

But the American Sociological Association has rejected this conclusion. The ASA emphasized this in a 2013 amicus brief for the Supreme Court regarding same-gender marriage cases:

However, the claim that same-sex parents produce less positive child outcomes than opposite-sex parents contradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing. The clear and consistent consensus in the social science profession is that across a wide range of indicators, children fare just as well when they are raised by same-sex parents when compared to children raised by opposite-sex parents.

Rather, according to the ASA, “family stability is predictive of child well-being.”

In the case of this foster child, who suffered abuse prior to being placed in a new home, being reunited with her biological parents is not in her best interest. Her biological father is in prison, and her biological mother “indicate[d] a desire to voluntarily relinquish her parental rights to the child.”

Ashley Sumner, a spokesperson for the Division of Child and Family Services, said the agency disagreed with the judge’s ruling and that its goal is “to keep children in stable homes.”

“We made the determination that this is a good placement, and we want to continue that placement,” she said. “We don’t want to disrupt this child’s life again.”

The DCFS, which has stated it supports Hoagland and Peirce adopting the child, had on Thursday filed a petition for a stay of the judge’s order. “It is our position that the removal is not in the best interests of the child,” officials said in a statement. “Unless Judge Johansen vacates his order, DCFS will proceed with our petition to the [Utah] Court of Appeals.”

Even Utah Gov. Gary Herbert, who is a Republican, was “a little puzzled” by the ruling. He criticized the judge for “inject[ing] his own personal beliefs and feelings in superseding the law.”

“He may not like the law, but he should follow the law,” Herbert said. “We don’t want to have activism on the bench in any way, shape or form.”

The law in Utah allows married same-gender couples to adopt or foster children now that gay marriage is legal nationwide.

Peirce said she and her wife did not know where Johansen found his research regarding the welfare of children raised by gay couples, but their primary concern is the outcome of the Dec. 4 hearing.

“We all make mistakes as humans. We all have our own opinions and sometimes they come out in the wrong setting,” Peirce said. “I’m not going to guess as to where it came from, I’m just going to be thankful that he decided to fix it.”

Organizations are still seeking action against the judge. On Monday, Alliance For a Better Utah launched a change.org petition called “Impeach Judge Scott N. Johansen.” According to the petition, “If Judge Johansen wants to act like Judge Judy, then he should get a reality TV show. In the meantime, his past and present conduct is unbecoming of a judicial officer.” And earlier last week, the Human Rights Campaign, a group that advocatesfor gay rights, filed a formal complaint with the Utah Judicial Conduct Commission. The complaint, signed by the HRC’s legal director Sarah Warbelow, called for an investigation of Johansen: “Recognizing that the original order has been amended and a hearing scheduled on December 4, we urge the Commission to act expeditiously to investigate Judge Johansen’s actions and to impose appropriate sanctions if it is determined that this decision was in fact based on bias.”

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