Does Mass. give religious people a fair shot at adoption?

A Catholic couple seemed to tick all the right boxes — except one that the Department of Children and Families insists on.

Catherine “Kitty” Burke and Michael Burke, a couple in Southampton who sought to adopt a child.Courtesy of the Burke Family/Andrea York Photography, LLC

Deciding who can foster or adopt the 9,000 children in Massachusetts who need placements is one of the toughest, and most high-stakes, decisions that the state’s Department of Children and Families makes.

But if what happened to Catherine “Kitty” Burke and Michael Burke, a couple in Southampton who sought to foster and adopt after experiencing infertility, is any guide, DCF is abusing the discretion it has in evaluating would-be parents.

It’s not just that DCF rejected the couple — though that decision does mean a Massachusetts child or sibling group was deprived of what is by all accounts a loving home. It’s the message that the state is sending: Even as it desperately seeks foster and adoptive parents, it allows a highly discretionary screening process to be narrowly dictated by the agency’s progressive view of good parenting.

According to a lawsuit the Burkes filed against the agency, which included copies of DCF evaluations and agency emails, Kitty and Mike Burke were denied after months of evaluations on March 31 by DCF’s Licensing Review Team. Why? The Burkes, the agency feared, “would not be affirming to a child who identified LGBTQIA.”

But the Burkes seemed to tick all the boxes for being loving and supportive parents. In their final decision, DCF noted the Burkes’ “strengths,” including their willingness to take in a child with “moderately significant medical, mental health and behavioral needs, their openness to maintain birth family connections and resiliency regarding their respective mental health.” According to their court complaint, the Burkes were also willing to take in children in DCF’s priority groups, including school-age children, special needs children, sibling groups, and Black, Hispanic, and mixed-race children.

The Burkes expressed a willingness to take in a child with “moderately significant medical, mental health, and behavioral needs" and children in DCF’s priority groups.Courtesy of the Burke Family

In an October 2022 email to a DCF employee, Linda-Jeanne Mack, a case worker from the Western Massachusetts family services organization 18 Degrees, wrote that the Burkes’ “faith is not supportive and neither are they.” The written evaluations dedicated what appears to be a disproportionate amount of time on hypothetical scenarios about a child’s sexuality. The couple were open with their responses to Mack, expressing a traditional view of marriage and sex and disapproval of gender-transition care for children. When asked what they would do if a child identified as “lesbian, gay, bisexual, queer, or any other sexuality,” Kitty shared that “there’s nothing wrong with it, I’m going to love you the same, but I believe you would need to live a chaste life.” According to the evaluation, “Mike appeared more open,” and he said he would likely attend his child’s same-sex wedding regardless of his own belief on Catholic chastity teachings.

But in December Mack ended up recommending that DCF grant the couple “approval with conditions, specifically around religion and LGBTQIA+ related issues.” Ultimately, DCF showed less flexibility than Mack.

DCF, which is entrusted with a huge amount of discretion, should make decisions rooted in the welfare of the child and insulated from the shifting progressive vogue for what a “good” parent looks like. After all, not too long ago it was gay and lesbian parents and unmarried people who were unreasonably being excluded.

Of course, there is no right to be a foster parent. In each case, the agency must responsibly use its discretion to evaluate the appropriateness of the fit and the parent’s ability to meet DCF’s standards. Marianna Litovich, the founder of All Our Kids, which supports and advocates for foster families, concurs with DCF’s decision, saying that the issue is about “understanding the role of a foster parent” and working within DCF’s regulations.

But one of the Burkes’ evaluations noted that they “really seem to understand adoption/foster care” — the decision to turn them away, therefore, was solely based on their religious views.

In the lawsuit in federal court, the Burkes argue their rejection amounts to religious discrimination against Catholics. And they seem to have a very strong case, based on a unanimous 2021 Supreme Court ruling that found that the City of Philadelphia broke the law when it stopped referring cases to Catholic Social Services, a foster agency in the city. As the court noted, “the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage.” The justices ruled that the city was violating the Free Exercise Clause of the Constitution.

Indeed, the way the agency handled the Burkes would also seemingly disqualify members of several other major world religions — though if DCF hasn’t treated members of other religions with similar teachings the same way, it would strengthen the contention it had singled out Catholics. Sam Whiting, a staff attorney at the Massachusetts Family Institute, a conservative organization “dedicated to strengthening the family and affirming the Judeo-Christian values upon which it is based,” says that DCF is effectively saying “If you are a religious parent, then you need not apply.”

There would have been a common-sense explanation for its position if the agency had simply decided not to place children who identify as gay or lesbian in the Burkes’ home. Per agency regulations, parents and DCF both have some flexibility as to which children are placed in approved homes. Once parents are licensed and complete training, for example, they enter into a written agreement with DCF that includes “a statement of any limitations on the identity or individual characteristics of children who may be placed in the foster/pre-adoptive home.”

But by refusing to place any children, the agency is going beyond any reasonable accommodation for the best interests of a child: It is making a categorical judgment that no child should be exposed to the values of one of the world’s major religions — directly in contradiction of the agency’s own regulations. DCF is bound by Massachusetts’ foster parents’ bill of rights, which protects foster parents from discrimination “on the basis of religion.”

And in the event a child with a conservative Catholic upbringing needed a foster home, the agency would also be effectively denying them a culturally matched home — again putting DCF at odds with its own requirement to “respect the integrity of a foster/adoptive child’s racial, ethnic, linguistic, cultural and religious background.”

What makes the agency’s actions especially troubling is that the state is in the midst of a crisis.

With over 7,600 children in foster care, DCF has resorted to drastic measures to make sure children are safely housed at short notice, including housing children without available placements in hospitals. A DCF spokesperson reported that while the agency is meeting its baseline for unrelated foster homes — foster homes that aren’t kinship or pre-adoptive placements — there is always a need for more homes “to place kids with families and in communities where they already live and go to school” and to meet children’s diverse needs. “Continuous recruitment efforts are necessary so the department has a deep bench of foster homes to make the best foster family matches for children,” said the spokesperson.

In light of the agency’s enduring operational challenges, it’s a mystery that the Healey administration isn’t speaking out about the Burkes’ case. When asked for comment, the administration referred me to DCF, which does not comment on pending litigation. According to an interview with The Messenger, Shaplaie Brooks, the executive director of the state’s Commission on LGBTQ+ Youth, is “proud to hear about [DCF] denying any home that would potentially cause any regression on their part.” Denying good parents based on hypothetical scenarios in the midst of a concrete foster care crisis could hurt children more than help them.

The Burkes stand a good chance of winning their case. But unless the administration acknowledges DCF overstepped and takes action to prevent it from happening again, what would-be foster parents will remember is that the agency can, and will, invent justifications to reject the parents that thousands of kids in Massachusetts so desperately need.