In re Adoption of Charles B.

Alice Robie Resnick, J.,

dissenting. I respectfully dissent from the majority decision. However, I do not agree with the court of appeals wherein it found as a matter of law a homosexual is ineligible to adopt a minor. Existing Ohio law is very clear that a homosexual is not as a matter of law barred from adopting a child under R.C. 3107.03(B). When deciding whether to grant or deny a petition for adoption, a court must consider all relevant factors before determining what is in the child’s best interest. The fact that the party seeking to become an adoptive parent is a homosexual *95 should not, in and of itself, be determinative. However, neither can it be ignored. When a homosexual seeks to adopt a minor, a trial court must have before it sufficient evidence to show that the prospective parent’s homosexuality will not have an adverse effect on the minor. The prospective parent must present evidence demonstrating that his or her homosexuality will not harm the child. Likewise, the party opposing the adoption by the homosexual must also submit evidence establishing not only that the homosexuality of the adopting parent had or will have an effect on the child, but also that the effect is or will be harmful.

The facts of each case must be considered, allowing the trial court broad discretion in determining whether there exists a nexus between the homosexuality of the prospective adoptive parent and the adoption which could have an adverse effect on the child. Other jurisdictions, when confronted with a parent’s homosexuality in a child custody or visitation context, which is a similar situation to the one before us, have used a “nexus test” or an affirmative showing of harm to the child caused by the parent’s sexual orientation. See, e.g., In re Marriage of Birdsall (1988), 197 Cal. App. 3d 1024 , 243 Cal Rptr. 287; S.N.E. v. R.L.B. (Alaska 1985), 699 P. 2d 875 ; Anonymous v. Anonymous (1986), 120 App. Div. 2d 983, 503 N.Y. Supp. 2d 466; D.H. v. J.H. (Ind. App. 1981), 418 N.E. 2d 286 ; Guinan v. Guinan (1984), 102 App. Div. 2d 963, 477 N.Y. Supp. 2d 830. Based on the facts of this case there does exist a nexus between the homosexuality of Mr. B and the adoption of Charles B which could adversely affect the child and thus would not be in the best interest of the child.

Charlie is presently eight years of age. Due to his many problems he may not be as mature as an average eight year old. Charlie’s natural mother and alleged father both signed voluntary permanent surrender papers. His family history evinces neglect and abuse. Charlie was tested by the Licking County Department of Human Services and the results indicate that he has a low functioning range I.Q., possible brain damage, and deficits in fine and gross motor skills. But, most importantly, Charlie has leukemia which presently is in remission. The treatment which Charlie received for leukemia has altered his immune system. To place Charlie in an environment with a homosexual who is engaged in a homosexual relationship is not in the best interest of the child.

While I agree that homosexuality is just one factor to be considered by the court in adoption proceedings, it should be weighed along with all other factors and- the ultimate decision must be based upon the best interest of the child. I also agree that a nexus must be found to exist between the sexual preference of the father and the adoption which could have an adverse effect on the child. In this case that nexus was well established by Dr. Frederick B. Ruymann, M.D., Director, Hematology Division; Professor, Department of Pediatrics, Children’s Hospital, the Ohio State University, wherein he stated in a letter to the court dated April 13, 1988 that adoption of Charlie by a homosexual “* * * would, with our present knowledge place Charles at increased risk for exposure to HIV infection, i.e. infection with the AIDS virus. * * * Charles has an altered immune system. The AIDS virus attacks the immune system further destroying it.”

Mr. B was aware of this problem and was tested, proving to be HIV negative. However, we must remember that adoption is not just for *96 today but forever. Mr. B falls within a high-risk population for AIDS. Why place a child whose immune system has already been altered in such an environment? It was best stated by Kathleen Handley, Administrator of Social Services for the Licking County Department of Human Services, at the hearing that “[o]ur feeling is that professionally it would be an adoption risk * * * to place a child in a setting where there is no practiced precedent to give us support. We do not view this as a child that needs experimentation. He has too many other issues that he has to conquer in his life.”

This case is distinguishable from Bezio v. Patenaude (1980), 381 Mass. 563 , 410 N.E. 2d 1207 , and other cases which hold that the lesbian or homosexual relationship standing alone is insufficient to adversely affect the welfare of the child. I am aware of research on this issue which shows that homosexuals can be effective parents. See, e.g., Note, Gay Parenting: Myths and Realities (1989), 9 Pace L. Rev. 129 ; Comment, Out of the Closet and into the Courts: Homosexual Fathers and Child Custody (1989), 93 Dickinson L. Rev. 401; and Comment, Homosexual Parenting: Child Custody and Adoption (1989), 22 U. Calif. Davis 1009. However, in this case not only do we have a homosexual relationship, but we also have a child who possesses mental and physical problems that could be exacerbated by this type of a life style.

In conclusion, Charlie thus far in his life has had many problems and there is nothing more that anyone would want for him than to be placed in a loving permanent home. But due to Charlie’s many medical problems, a homosexual environment is not in his long-term best interest. I sincerely regret that the record in this case was not better developed by the appellee during trial. This was a difficult decision for the trial court to make and the manner in which it was tried on the part of the appellee made it even more difficult for the court. However, we are dealing with the life of an eight-year-old boy; therefore, the paramount concern is the well-being of this child. Because Charlie’s immune system has been dramatically altered due to treatment for leukemia, in the long term, this adoption simply is not in his best interest. Therefore, I find that the trial court abused its discretion in granting the petition for adoption. I would affirm the court of appeals, however, not for reasons stated in its opinion but simply because Charlie is a very special little boy with unique and individual physical and mental problems. Thus, based upon those problems it is not in the best interest of Charlie to be adopted by Mr. B.