Baby stays with same-sex foster parents, court orders

Andrew Clevenger

Jun. 5, 2009 (McClatchy-Tribune Regional News delivered by Newstex) -- CHARLESTON, W.Va. -- The West Virginia Supreme Court has allowed an infant to stay with her same-sex foster parents in Fayette County.

In a released Friday, the justices determined that Fayette Circuit Judge Paul Blake erred when he allowed the state Department of Health and Human Resources to approve the infant's removal from her foster home in November 2008.

The child had lived with Kathryn Kutil and Cheryl Hess, a same-sex couple who had already been approved by the state as foster parents, for her entire life after having been born to drug-addicted mother in December 2007.

Blake agreed with Thomas Fast, the child's guardian ad litem, appointed to protect her legal interests, and the DHHR's recommendation to relocate the child, and decided that the child would be better off in a home with a "traditional" family, i.e. a married mother and father.

"Despite the number of times that this Court has stated the best interest of the child is the polar star upon which decisions involving children are to be based, DHHR did not even consider whether the individual needs of [the child] would be best served by removing her from [Hess and Kutil's] care, but instead opted for a swift and ready solution to the problem the agency created," the opinion states.

"The agency simply turned a blind eye to the fact that [the child] had been placed in the foster home a number of months before some of the other children then in the home, and ignored any consideration of the impact relocation would have on [the child's] emotional, physical and mental development."

The DHHR had maintained that the only reason it recommended removing the little girl from Hess and Kutil's care was because the couple had too many foster children living with them. At the time Blake approved the child's removal, there were six foster children and Kutil's adopted daughter living in the couple's home.

"We find it disconcerting that DHHR just 'discovered' the overcapacity issue on the date of the hearing when the agency had created the situation by placing what appears to have been more than one child in the home a month earlier," the court noted. "Even accepting DHHR's representation that the worker who handled the last placement in the home misunderstood relevant procedures, it is certainly not clear why it took a month for the agency to uncover this problem."

Anthony Ciliberti Jr., who represented Kutil and Hess, said they were "extremely happy" when he drove to their home to deliver the news on Friday.

While much of the media attention has focused on his clients' sexual orientation, Ciliberti said the justices' decision was more focused on the best interests of the child.

"We're talking about a child's life," he said. "We're talking about the emotional connection between a child and her foster siblings and parents."

Ciliberti said he pressed Deputy Attorney General Angela Ash, the DHHR's attorney, to identify who made the decision to remove the child at an earlier hearing. He said she refused, saying it was the department's decision.

It was "extremely spineless" of those responsible at the DHHR to make a decision that was apparently motivated by political expediency instead of the child's best interests, he said. The department created the overcrowding issue, then chose to remove the child at the heart of the legal controversy, he said.

Ash could not be reached for comment Friday.

Fast said he was disappointed with the ruling, because it appeared to ignore information he presented at an evidentiary hearing for Blake's consideration in November 2008.

"There was testimony from a licensed forensic psychologist, who clearly stated that the optimal family structure for children is to be raised by a loving, married mother and father," he said. "That evidence was not cited, and it appears it was not considered."

The psychologist's opinion was based on multiple scientific studies that represented decades' worth of research, he said.

"The court's ruling now paves the way for this child to spend her entire life without a father," he said. "That is how the court is now defining, in this case, what's in her best interests."

Blake was not motivated to remove the child because she was receiving substandard care, the justices concluded.

"It is more than apparent that the only reason why [Kutil and Hess] were being replaced as foster care providers was to promote the adoption of [the child] by what [Blake] called in his November 12, 2008, order a 'traditionally defined family, that is, a family consisting of both a mother and a father,'" the opinion reads.

State law allows only three types of people to legally adopt a child: a single person; a married person with permission from his or her spouse; or a married couple.

But state law does not prefer one category over another, as suggested by Blake's ruling, the justices said.

"[T]here simply is no legislative differentiation between categories of eligible candidates for adoption under the terms of West Virginia Code," the opinion states. "Such policy determination is clearly a legislative prerogative, outside of the purview of the courts."

The decision produced mixed reactions from groups that had been following the case.

"We are so gratified that a unanimous court affirmed that no one type of loving family is preferred by law in West Virginia," said Frank Crabtree, executive director of the ACLU of West Virginia.

However, Jeremiah Dys, president of the Family Policy Council of West Virginia, maintained that the justices had misinterpreted the plain language of the law.

"This court has placed the emotional desires of two adults above the best interests of the child as stipulated by state law," he said in an e-mailed statement. "Foster parenting is, by definition, a temporary arrangement with no guarantee or promise of adoption. Couples who do not qualify as adoptive parents should not expect to become adoptive parents."

Ciliberti reiterated that his clients never intend to become poster-children for a cause celebre.

"Kathy and Cheryl just want to be able to raise their family and live their life in the same way that all of us do," he said.

Ultimately, one of the two women hopes to adopt the child, now 18 months old, he said.

Reach Andrew Clevenger at aclevenger@wvgazette.com or 304-348-1723.

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