Boise lesbian couple looks to set precedent with adoption case

Together since 1995, a lesbian couple look to set precedent with an adoption case that is before the Idaho Supreme Court

dpopkey@idahostatesman.comDecember 19, 2013 

Darcy Drake Simpson, right, and Rene Simpson are raising two boys. “Families come in different shapes and sizes,” Drake Simpson said. “What matters is that you’re loved and taken care of. We’ve always told the kids that. Sometimes, they’ll admit their family’s kind of cool.”

DARIN OSWALD — doswald@idahostatesman.com

  • Judge: In Idaho, no provision allowing Simpson to adopt

    BY DAN POPKEY

    dpopkey@idahostatesman.com

    © 2013 Idaho Statesman

    In denying Darcy Drake Simpson's adoption petition, Ada County Magistrate Cathleen MacGregor Irby cited Idaho law that provides for marriage only between a man and a woman and prohibits same-sex marriages.

    "(T)his court concludes that the legislature's intent in relation to adoptions is that the petitioner must be in a lawfully recognized union, i.e. married to the prospective adoptee's parent, to have legal standing to file a petition to adopt that person's biological or adopted child," she wrote Sept. 13.

    The judge said "the court does not find any provision that allows for the adoption of a person's adopted and/or biological children by that person's cohabitating, committed partner," or any Idaho case law addressing the issue.

    MacGregor Irby made a similar ruling in a 2007 case, but attorney Lisa Shultz says magistrates in Bannock and Latah counties have approved second-parent adoptions by gay couples.

    MacGregor Irby also denied a a second-parent adoption to one of the four Idaho lesbian couples who sued in federal court last month to overturn Idaho's ban on same-sex marriage. Lori and Sharene Watsen are raising an infant son born to Sharene in May. Lori Watsen's petition to adopt the boy also was dismissed by MacGregor Irby in September.

    Simpson's lawyers argue that since the first adoption law passed by the Territorial Legislature in 1879, "any adult person" who met criteria as a parent could adopt.

    The brief to the Idaho Supreme Court quotes the report from the Department of Health and Welfare recommending the adoption. The evaluator from Child and Family Services said Simpson meets requirements including age, health, physical fitness, criminal clearance, education, employment, income and the ability to parent, and has the "full support of extended family members and friends."

    The appeal argues that MacGregor Irby had no authority to dismiss the adoption without allowing argument or an evidentiary hearing; erroneously interpreted the law, which "plainly and unambiguously authorizes this adoption"; and wrongly held that the adopting parent must be married.

    Even if the law is ambiguous, they argue, the adoption should go forward because "the overriding purpose of the adoption statutes is to protect the best interest of children by providing them with permanency and stability in their family relationships."

    Finally, they say, MacGregor Irby's ruling violates both parents' and children's equal protection rights under the U.S. Constitution by "excluding them from the benefits of adoption based on their parents' marital status, sexual orientation, and gender."

    The Supreme Court had set oral arguments in the case for Jan. 15, but that was canceled after the court learned that Attorney General Lawrence Wasden would not argue the case because he had been erroneously added as a party.

    Dan Popkey: 377-6438

Christmas with the Simpsons means a nativity scene, a wooden snowman counting down the days to Dec. 25, and a tree next to the cage housing Lester the bearded dragon.

This year, it also means four sets of crossed fingers.

For Rene Simpson, Darcy Drake Simpson and the two boys they've raised together in Boise, the question is whether Darcy — the woman who greets them every day after school — will be legally recognized as their mother.

"All I want for Christmas is for my kids to have a legal second parent," said Rene, the breadwinner in the family. She gave birth to her first son in 1998 and adopted a second boy as an infant in 2001.

"She's doing all the work and not getting any credit for it, any acknowledgment, any legal title."

Darcy, a stay-at-home mom, petitioned to adopt the children Aug. 30. The boys, ages 12 and 15, approved adoption — a requirement for children their age under Idaho law. The Idaho Department of Health & Welfare recommended approval.

But after just 14 days, Ada County Magistrate Judge Cathleen MacGregor Irby denied the petition, saying that when the Idaho Legislature explicitly banned same-sex marriage in 1995 and voters added a constitutional ban on civil unions and marriages in 2006, they intended adoptions only for parents "in a lawfully recognized union."

BROADER PRECEDENT

MacGregor Irby dismissed the case without an evidentiary hearing or oral arguments. The couple appealed to the Idaho Supreme Court, which will decide the matter based on a 36-page brief filed by the Boise lawyers representing the Simpsons, Bill Mauk, Nate Peterson and Lisa Shultz.

Mauk said the Supreme Court should return the case to MacGregor Irby with instructions that she approve the adoption petition.

"The root purpose of the adoption law is to protect the best interests of the children," Mauk said. "So how can you structure a situation that keeps these children exposed in the event of some tragic circumstance that is very destructive and not in their best interests?"

Winning the case would set a precedent for adoption not just by gay couples, but also for grandparents, aunts and uncles, and others, Mauk said.

He and his wife have two adopted children.

"There's a whole spectrum of second parents who are carrying out the role of parents who could also step in," said Mauk, one of Idaho's leading trial lawyers. "It would solidify that for any adult, it really doesn't matter. Marriage is insignificant."

Adoption cases, including this one, are sealed by the courts. The couple agreed to discuss the case with the Statesman but asked that their children not be named. MacGregor Irby declined comment because the case is pending.

'NOT CAUSE PEOPLE'

Rene, 53, and Darcy, 49, were raised by Nazarene parents and say traditional values underpin their lives and their decision to appeal.

They met in 1995, after Darcy noticed in an obituary that Rene's partner had died. Darcy's partner had died four years earlier, prompting her to reach out. "Idaho at the time was not very helpful to grieving same-sex partners," Darcy recalled.

Two years later, they decided they wanted to have children and held a commitment ceremony at Christ Chapel on the Boise State campus.

They now complete one another's sentences.

"I still think it's really important that marriage comes before birth," said Rene. "I know that's not popular with a lot of people in this day and age, but that's the way I wanted my family raised and formed."

Darcy said: "We wanted to have that commitment. It didn't matter that it wasn't recognized as legal, but to us it was important that we have that in front of friends and family — "

" — and God," said Rene.

"And God — to say, 'We are committed to each other,' " said Darcy.

Mauk said that his clients are "not cause people" and that their first priority is winning the case.

"We lead by example," said Darcy. "So you're not going to see a rainbow flag flying in our yard."

In 2002, the couple went to Bennington, Vt., where a justice of the peace performed a civil union ceremony under that state's law. That union allowed Rene to cover Darcy on her employer's health plan.

Rene, a graduate of Northwest Nazarene University, works as a human resources training administrator in Boise.

On July 26 of this year, after the U.S. Supreme Court overturned the federal Defense of Marriage Act and cleared the way for gay marriage in California, the couple married in Darcy's hometown of Yreka.

Neither civil unions in Vermont nor gay marriages in California are recognized in Idaho. But the couple will file a joint federal tax return for the first time, thanks to the DOMA ruling.

Once married, the Simpsons wanted to complete their family legally. "It just felt like there was change coming about in the world and this felt like a good time," Rene said.

Candy Krueger, a teacher and assistant principal for 44 years, was among the family friends who wrote the judge a letter in support of the adoption.

Of Darcy's suitability as a legal parent, Krueger said: "If more parents could be like her, there would be more kids in the world with fewer problems. It's common sense, with love and humor, and an understanding that there's right and wrong in what you do and how you treat people."

POTATO GUNS AND FLAMETHROWERS

Rene calls herself a perfectionist, Darcy a free spirit. "Sometimes it's like I have three children," Rene said.

Darcy donned pads to drill the defense in four years of coaching Optimist football and is known in the neighborhood as a prankster. While you won't see gay pride flags, other flying objects abound.

"We started with a potato cannon and it just worked its way up to a flamethrower," Darcy said. "We're the fun house."

This summer, the couple asked their 15-year-old, "What do you think about having two moms?"

"He said, 'It's really cool because you let us blow things up,' " recounted Darcy.

"Their children are their lives," said family friend Dan Haney.

In third or fourth grade, Haney's two children realized the Simpsons were different. "No one else they knew had two moms, but it was never an issue," he said.

The boys call Rene "Mom" and Darcy "Momma D," a nickname adopted by friends and neighbors.

"She's always done the job and it's important that she be legally recognized," Rene said. "And that our kids have stability in the event anything happens to me, they will have that legal parent and not just a legal guardian."

"I am the Momma D," said Darcy.

They celebrate Mother's Day twice annually; on the traditional date for Rene, and on Nov. 3 for Darcy. That's the day the couple learned Rene was pregnant after artificial insemination from an anonymous donor. The couple jokingly refer to the father as "No. 693," the sperm bank's designation.

"My dad thought that was so funny," said Rene. "My mom, not so much."

PHOTO OPPORTUNITY

The couple decided Rene would be the birth mother because with her college degree and health insurance, she would provide stronger financial support. Darcy quit her job at Boise Parks and Recreation to raise the children.

The Simpsons say they're optimistic about their case because of the rapid change in public opinion since their 1997 commitment ceremony.

"But no matter how this works out, my role at home stays the same," Darcy said. "They're still my kids and that's how it will be, forever."

When the second child's adoption was approved, Rene sat in the courtroom at the counsel's table. Darcy sat behind the rail with the two boys. After the formalities, then-Magistrate Judge Timothy Hansen asked whether the family would like a photo at the bench.

Darcy moved to hand off the children to Rene, but Hansen said, "No, all of you."

"It was a huge gesture," recalled Darcy.

"He was recognizing us as a family," said Rene. "It meant a lot."

Dan Popkey: 377-6438, Twitter: @IDS_politics

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