Court costs

Her headline—the one about foster care in Philly—stirred up a hornet’s nest.

Julia Terruso knows this, but nearly four years to the day since it was published, she tells me she had no idea her story would snowball into a Supreme Court case. “I don’t even remember if it ran on the front page,” she admits.

As a reporter for The Philadelphia Inquirer, Terruso was covering the city’s child welfare agencies in 2018 when a woman reached out to her with a tip. Bethany Christian Services, citing religious views on homosexuality, had turned away a lesbian couple who wanted to become foster parents. That got Terruso thinking. What about all the other foster care and adoption agencies contracting with the city of Philadelphia? Did they hold similar beliefs?

Of the 30 adoption agencies in Philadelphia, she only found one other agency that wouldn’t work with LGBTQ foster parents on religious grounds—Catholic Social Services (CSS), operated by the Philadelphia Diocese of the Roman Catholic Church, which had served Philly’s needy children for more than a century.

Even with a bio that emphasizes she’s “interested in what unites and separates us,” Terruso downplays the fact she hit pay dirt with that discovery. “The case [Fulton v. City of Philadelphia] simply brought to light a conflict that needed resolution,” she says. “I’m amazed it didn’t come up sooner.”

The ultimate resolution may not have been what Terruso expected, but the path to it certainly proved the power of the press. Just days after her initial story broke, city officials announced Philadelphia was suspending partnerships with CSS and Bethany, and within three months Bethany capitulated. The Philadelphia branch of the Christian agency agreed to work with same-sex couples and partner with the Mayor’s Office of LGBT Affairs for staff training.

In contrast, CSS held its stance with enough tenacity to get through three difficult years of litigation. News outlets reported defeats for the Catholic agency at federal district court and in the U.S. 3rd Circuit Court of Appeals, but they also, on June 17, 2021, announced a victory. The U.S. Supreme Court in a 9-0 judgment said Philadelphia had wrongly violated the free exercise clause of the First Amendment.

The significance of the Fulton v. City of Philadelphia decision is still being realized, and not just at CSS. It’s a win that came with losses, the behind-the-scenes kind that don’t make the headlines. But it also came with gains that are just starting to.

QUAKER WILLIAM PENN called the government he hoped to establish in Pennsylvania his “holy experiment.” He continued to aim high by combining the Greek roots phileo (love) and adelphos (brother) in naming its chief municipality, but living up to that title has been difficult for the City of Brotherly Love.

Among the country’s 10 largest cities, Philadelphia has the highest per capita murder rate. It’s also the poorest, with more than 23 percent of its residents living in poverty. Researchers say there’s a close link between poverty and child welfare, and in Philadelphia the link is strong. Their foster care system in late February was serving 4,069 children and youth.

Even so, that’s a 33 percent drop since 2016, when the number enrolled was greater than 6,000. According to Nya Sturrup of Philadelphia’s Department of Human Services, the decline is a testament to new strategies like kinship caregiving, when a relative serves as a foster, or “resource,” parent. In Philadelphia more than half of foster children live with their relatives.

The process of screening and certifying kin is new for Bob Montoro, the man who’s been at the helm of CSS’ foster care program for more than 20 years. The kinship push grew while he and his program were benched. That is, while Philadelphia wouldn’t send them foster children. The three-year freeze.

Montoro is one of more than a thousand employees who serve under Jim Amato, secretary of Catholic Human Services for the Archdiocese of Philadelphia. Both Montoro and Amato are Philadelphia natives, and they sound like it when they say words like with and coffee. Montoro grew up in a row house. Amato grew up with a passion for Geno’s cheesesteaks in South Philly.

In a third-floor conference room in downtown’s Archdiocesan Pastoral Center, the men detail careers spent helping run programs that benefit Philadelphians. When asked how it felt to have their foster services suspended, Amato sighs, then describes his final meeting with city officials. That’s when Department of Human Services (DHS) Commissioner Cynthia Figueroa insinuated CSS needed to keep up with the times. In response, Amato referred to Catholic teachings. “Before I even got back to my office, I got a call,” Amato remembers. “They told me our intake was frozen.”

That action had immediate implications for Montoro and his team of social workers. They had 128 foster placements in some 100 homes, and although the city wouldn’t remove the children, the recruiting of new foster parents would stop. The home studies would stop. And without placements funneling into CSS, the need for their services would dry up.

And that’s what happened. By the time the Supreme Court handed down its decision in Fulton, the number of foster children in CSS care had dwindled to 18, and the number of experienced, committed foster parents dropped by 70.

“Remember, these were foster parents who were willing to go through the tough adjustment periods when kids are frightened, when kids resist and have all sorts of issues,” Amato points out. “So they’re committed people. They’re not a dime a dozen.”

Montoro’s staff also decreased as the hiatus forced his employees to secure other positions. He had managed to assemble a stable team, and it hurt to watch it dissolve: “I think everyone had been here for a minimum of three years, which in child welfare is pretty good.”

At least one employee had been at CSS for decades. As the intake freeze wore on, Eileen Mullen decided to take early retirement so other staff members wouldn’t lose their jobs.

“We’re talking about a key person who had done the home studies for all these foster parents. They were attached to her,” Amato explains. “They could call Eileen and talk about anything from child discipline to coping with stress. She embodied what we in social work consider to be solid customer service.”

But both men agree the biggest loss during the freeze is an unknown—missed adoptions. In the past, CSS averaged 25 foster-adopts a year.

“We lost those kids,” Amato acknowledges. “They might have had the opportunity to heal, to reinvent themselves with a forever family.”

AMONG THE AMICUS BRIEFS filed during Fulton proceedings were some written by attorney Andrea Picciotti-Bayer, a mother of 10 who directs the Conscience Project, a nonprofit focused on conscience rights and religious freedom. One brief profiled Karen Quinn, a foster parent known throughout Philadelphia for receiving newborns. When intake at CSS ceased, people who saw Quinn didn’t recognize her without an infant. “She said the silence in her house was unbearable,” recalls Picciotti-Bayer. “They were used to laughter and crying and the fussing of a child.”

Even Quinn’s own children, some adopted through foster care, saw it as a loss. “They told me her arms were ‘those kinds of arms,’” Pic­ciotti-Bayer smiles. “You know, arms that a baby can just rest in, and find comfort and peace.”

The United States is hardly in a position to reject open arms. Each year more than 400,000 children need foster homes, and Picciotti-Bayer believes spotlighting that need is one good that came from the struggles at CSS. “This isn’t just a problem in Philadelphia. It’s a crisis across the country, and the church must respond in kind.”

The courage of CSS inspired friends within Picciotti-Bayer’s social network to consider fostering or adoption. “They said, ‘You know, maybe we have a little bit more room in our house for somebody who needs a place.’ It’s an impressive thing, the ripple effect.”

Fulton’s ripples have most recently reached Michigan, where the Department of Health and Human Services followed the high court’s ruling and settled two lawsuits that mirrored Philadelphia’s. Lansing-based St. Vincent Catholic Charities, one of the oldest adoption and foster care agencies in the state, sued when in 2019 Michigan refused to contract with agencies that wouldn’t place children with same-sex and unmarried couples. Catholic Charities West Michigan filed a similar lawsuit.

Attorney Lori Windham represented both St. Vincent’s in Lansing and CSS in Philadelphia. She’s senior counsel for Becket, a nonprofit law firm focused on religious liberty cases, whether they involve Sikh turbans or contraceptives in health insurance plans. Because of the pandemic, in 2020 she argued Fulton by phone from her Washington, D.C., office as justices listened in and her family watched from the next room. Windham believes the unanimous ruling in that case sent a powerful message—that religious rights could be protected.

“The good thing I see happening as these cases wrap up is that the lawyers can step out of the room and let the people who work at the agencies and their counterparts at the state or the city get back to working together to help kids.” She says the ultimate goal is resolving issues without lawsuits. “I love winning in court, but the ideal is finding a commonsense solution.”

Fulton came too late for faith-based foster agencies in D.C., Boston, and San Francisco. When the 2015 Obergefell v. Hodges decision dialed up debate over same-sex marriage, they decided to close their doors. In Illinois, closures happened even before Obergefell. A 2011 law ended its partnerships with faith-based agencies, and by 2019 the state had lost more than 5,000 foster homes.

HEADLINES LAST NOVEMBER highlighted the $2 million settlement Philadelphia eventually reached with CSS. The majority of the money, $1.95 million, went to Becket for legal fees, leaving $56,000 for CSS. The city also restored CSS to a full contract with referrals, including $350,000 for 2022 foster care services. CSS, for its part, agreed to post on its website that it doesn’t certify same-sex or unmarried cohabiting couples but can provide information on agencies that do.

The agreement also contained another stipulation. The city had to work with the longtime foster parents named in the suit. But that won’t happen with Sharonell Fulton, the face of the case. She’s done.

“Being the front person really took a toll,” Montoro explains. “All the emotional energy it takes to tell your story over and over.”

Still, he didn’t have a clue what was coming last summer when he stood in Fulton’s living room, the one some 45 foster kids have called their own. The June ruling had Montoro out doing foster parent reevaluations, prepping for a restart. But all Fulton wanted to talk about was a possible move to Lancaster County, west of Philadelphia. “This was somebody who had stuck her neck out for some very difficult cases and had hung in there and done amazing things for children, and she just said, ’You know, I’m moving on.’ It was gut-wrenching,” remembers Montoro.

To move on—to move away—Fulton will have to leave something behind. Each time a child came to live in her home, “Meme” (pronounced Mimi) Fulton planted a tree. Andrea Picciotti-Bayer learned this while conducting interviews for an amicus brief.

“It didn’t matter whether the child would be there for a short period of time or an extended period of time, they got a tree,” she says. When one of Fulton’s foster children told Picciotti-Bayer that he watched a forest grow tall while he grew as well, the image stuck with the attorney. “I kept thinking of this woman who was responsible for a whole grove of vibrant, strong people,” she says. “They’re now able to stand on their own.”

Acknowledging an era of achievement like that underscores what everyone involved with CSS’ gutsy fight against Philadelphia has realized. Standing against behavior the Bible forbids comes with consequences, and Fulton personifies them. The call Jim Amato got from the DHS commissioner that spring day in 2018 didn’t just freeze Fulton’s intake of foster placements. It ended it.

But the work of rebuilding the program at CSS is ramping up. New hires walk the halls, and Montoro’s phone is buzzing with foster referrals. Three come through during our hour-long interview.

“The process changed. Now it’s all email,” he shakes his head, squinting at the screen. He sends a quick reply to all three requests: No, no, and no. They’re for older youth, and right now, CSS doesn’t have a single foster parent willing to take in teens. Thus their new advertising campaign to recruit foster parents for that exploding niche.

“We’re starting from scratch, but we’re getting our name back out there,” Amato says, maybe even with a bit of enthusiasm. “It’s happening slowly. A lot of good things happen slowly.”