High Court to Hear Lesbian Adoption Case

[Lost River Ledger]

Thursday December 11, 2008
Lesbian couple fights to keep baby
Fayette County judge says 11-month-old should be in a 'traditional' home
by Justin D. Anderson
Daily Mail Capitol Reporter

CHARLESTON, W.Va. -- The state Supreme Court will hear arguments in the case of a same-sex couple in Fayette County fighting a judge's order that the baby girl they've been raising since birth should be removed from their home and placed in one with a married man and woman.

Kathyrn Kutil and Cheryl Hess argue that Fayette Circuit Judge Paul Blake exceeded his authority and violated their constitutional rights by ordering that the 11-month-old be immediately transitioned into a "traditional" home.

They say the judge has effectively excluded them as potential adoptive parents of the child simply because of their sexual orientation.

The couple also contend that the state Department of Health and Human Resources - while initially supporting their adoption of the infant - changed course in a later hearing and advocated that the child be removed because there was one too many children already living in the couple's Oak Hill home.

In their petition to the Supreme Court, Kutil and Hess allege that the DHHR seems to be more worried about the political fallout of allowing a same-sex couple to adopt the girl than what's best for her.

The couple contends Judge Blake is "setting a dangerous precedent" for discriminatory treatment of non-traditional families who want to adopt. State law allows either single individuals or married couples to adopt.

The Supreme Court on Tuesday voted 4-1 - with Justice Elliott "Spike" Maynard dissenting - to review the case. Arguments are set for March 11.

The girl was born Dec. 8, 2007 in Charleston to a drug abusing mother, according to court records. The baby had cocaine, opiates and benzodiazepines in her system and underwent withdrawals from the drugs after birth.

The father of the girl was unknown and DHHR could not find any blood relatives to take her in, so the agency placed the girl with Kutil and Hess on Christmas Eve, the day she was released from the hospital.

The couple is approved by the DHHR as foster and adoptive parents, the petition says. Kutil recently adopted a 12-year-old girl whom she'd been fostering for over two years.

The Fayette circuit court terminated the biological mother's parental rights in a Nov. 6 order, making the infant eligible for adoption.

Previously, the child's legal advocate, Thomas K. Fast, had filed a motion with the court to remove the girl from the same-sex home. That motion had been pending since Jan. 24.

At a Nov. 6 hearing, the court considered DHHR's plan for permanent placement of the girl, which included allowing Kutil and Hess to adopt her.

Fast objected to this part of the plan and Judge Blake agreed, saying the DHHR was trying to take discretion away from the court as to deciding the best interests of the child.

The couple's lawyer, Anthony Ciliberti, described the women this way in a transcript: "What I can say about these two women is that they are far and above, based on my experience in dealing with them . . . they are far and above conceivably the best foster parents we have in this county."

Ciliberti declined to comment for this story, saying the parties have agreed to confidentiality.

Judge Blake, during that Nov. 6 hearing, blamed himself for allowing the case to get messy.

CHARLESTON, W.Va. -- The state Supreme Court will hear arguments in the case of a same-sex couple in Fayette County fighting a judge's order that the baby girl they've been raising since birth should be removed from their home and placed in one with a married man and woman.
Kathyrn Kutil and Cheryl Hess argue that Fayette Circuit Judge Paul Blake exceeded his authority and violated their constitutional rights by ordering that the 11-month-old be immediately transitioned into a "traditional" home.

They say the judge has effectively excluded them as potential adoptive parents of the child simply because of their sexual orientation.

The couple also contend that the state Department of Health and Human Resources - while initially supporting their adoption of the infant - changed course in a later hearing and advocated that the child be removed because there was one too many children already living in the couple's Oak Hill home.

In their petition to the Supreme Court, Kutil and Hess allege that the DHHR seems to be more worried about the political fallout of allowing a same-sex couple to adopt the girl than what's best for her.

The couple contends Judge Blake is "setting a dangerous precedent" for discriminatory treatment of non-traditional families who want to adopt. State law allows either single individuals or married couples to adopt.

The Supreme Court on Tuesday voted 4-1 - with Justice Elliott "Spike" Maynard dissenting - to review the case. Arguments are set for March 11.

The girl was born Dec. 8, 2007 in Charleston to a drug abusing mother, according to court records. The baby had cocaine, opiates and benzodiazepines in her system and underwent withdrawals from the drugs after birth.

The father of the girl was unknown and DHHR could not find any blood relatives to take her in, so the agency placed the girl with Kutil and Hess on Christmas Eve, the day she was released from the hospital.

The couple is approved by the DHHR as foster and adoptive parents, the petition says. Kutil recently adopted a 12-year-old girl whom she'd been fostering for over two years.

The Fayette circuit court terminated the biological mother's parental rights in a Nov. 6 order, making the infant eligible for adoption.

Previously, the child's legal advocate, Thomas K. Fast, had filed a motion with the court to remove the girl from the same-sex home. That motion had been pending since Jan. 24.

At a Nov. 6 hearing, the court considered DHHR's plan for permanent placement of the girl, which included allowing Kutil and Hess to adopt her.

Fast objected to this part of the plan and Judge Blake agreed, saying the DHHR was trying to take discretion away from the court as to deciding the best interests of the child.

The couple's lawyer, Anthony Ciliberti, described the women this way in a transcript: "What I can say about these two women is that they are far and above, based on my experience in dealing with them . . . they are far and above conceivably the best foster parents we have in this county."

Ciliberti declined to comment for this story, saying the parties have agreed to confidentiality.

Judge Blake, during that Nov. 6 hearing, blamed himself for allowing the case to get messy.

"This court had the authority to reject the foster placement of this little girl in this present foster home at the time this case was first instituted," Blake said in the transcript. "I didn't do that, or this court didn't do that because, in the best interests of the child, it was felt that these ladies could provide appropriate and suitable foster care for the children."

But Blake continued to say that he only intended to allow Kutil and Hess to provide foster care to the girl, not pave the way for them to adopt her.

"I think I've indicated time and time again, this court's opinion is that the best interest of a child is to be raised by a traditional family, mother and father," Blake said. "Now, that's this court's opinion as to what a typical West Virginian would feel and what the typical attitude is of the West Virginia Supreme Court, a traditional family."

Blake said the DHHR's plan for the girl seemed to exclude the possibility of first trying to place her with a traditional family.

"All through this case, it's been abundantly clear that the DHHR . . . wants this child adopted by this same-sex couple," Blake said. "That is what they have aimed at in the reports and everything else . . . Now, if I'm incorrect, if my view of West Virginia society and our values and family system is so skewed that I'm wrong about what the traditional family in West Virginia consists of, well, so be it.

"I don't believe I am. I believe that and that most courts would hold that a child benefits from a mother and a father. There's no father in this relationship."

In the end of that hearing, Blake ordered that the girl be transitioned into a "traditional" foster home over a two-week period. All the parties were then to return for an evidentiary hearing on Nov. 21.

During that hearing, the DHHR argued that Kutil and Hess had seven children living in the house, one over the limit, and that the agency had found a potential adoptive "traditional" home for the baby girl - in contrast to their previous support that the couple be considered for adoption. The couple maintained that DHHR had agreed to give them a waiver to allow them to exceed the number of children in their home.

Ciliberti put on an expert witness who said the more appropriate thing to do would be to remove the most recently placed child from the home, not one the couple had been caring for the past 11 months.

The expert, Dr. Christine Cooper-Lehki, also testified that medical associations have determined that the argument against same-sex adoption is more a philosophical rather than medical one.

Dr. Cooper-Lehki also testified that the girl had bonded with Kutil and Hess and that sudden removal could cause long-term negative effects on the girl's emotional well-being.

Nevertheless, the court ruled that the girl be removed by noon the next day from the house and placed with the potential adoptive parents.

Four days later, that couple contacted DHHR to say they were no longer interested in adopting the girl. The agency then placed the girl in a foster home in Greenbrier County.

But the Supreme Court had granted Kutil and Hess' motion for an emergency stay of Judge Blake's order, so the girl was returned to them the same day she had been placed in Greenbrier County.

In their petition, the couple argues that at least one of them should be considered as a possible adoptive parent.

"It is absolutely nonsensical for DHHR or the circuit court to remove the infant from the only home she has ever known simply because the court believes traditional families are the best environment for a child and as DHHR now appears to be attempting to avoid scrutiny by advocating for the removal of the child," the petition says.

"This court had the authority to reject the foster placement of this little girl in this present foster home at the time this case was first instituted," Blake said in the transcript. "I didn't do that, or this court didn't do that because, in the best interests of the child, it was felt that these ladies could provide appropriate and suitable foster care for the children."

But Blake continued to say that he only intended to allow Kutil and Hess to provide foster care to the girl, not pave the way for them to adopt her.

"I think I've indicated time and time again, this court's opinion is that the best interest of a child is to be raised by a traditional family, mother and father," Blake said. "Now, that's this court's opinion as to what a typical West Virginian would feel and what the typical attitude is of the West Virginia Supreme Court, a traditional family."

Blake said the DHHR's plan for the girl seemed to exclude the possibility of first trying to place her with a traditional family.

"All through this case, it's been abundantly clear that the DHHR . . . wants this child adopted by this same-sex couple," Blake said. "That is what they have aimed at in the reports and everything else . . . Now, if I'm incorrect, if my view of West Virginia society and our values and family system is so skewed that I'm wrong about what the traditional family in West Virginia consists of, well, so be it.

"I don't believe I am. I believe that and that most courts would hold that a child benefits from a mother and a father. There's no father in this relationship."

In the end of that hearing, Blake ordered that the girl be transitioned into a "traditional" foster home over a two-week period. All the parties were then to return for an evidentiary hearing on Nov. 21.

During that hearing, the DHHR argued that Kutil and Hess had seven children living in the house, one over the limit, and that the agency had found a potential adoptive "traditional" home for the baby girl - in contrast to their previous support that the couple be considered for adoption. The couple maintained that DHHR had agreed to give them a waiver to allow them to exceed the number of children in their home.

Ciliberti put on an expert witness who said the more appropriate thing to do would be to remove the most recently placed child from the home, not one the couple had been caring for the past 11 months.

The expert, Dr. Christine Cooper-Lehki, also testified that medical associations have determined that the argument against same-sex adoption is more a philosophical rather than medical one.

Dr. Cooper-Lehki also testified that the girl had bonded with Kutil and Hess and that sudden removal could cause long-term negative effects on the girl's emotional well-being.

Nevertheless, the court ruled that the girl be removed by noon the next day from the house and placed with the potential adoptive parents.

Four days later, that couple contacted DHHR to say they were no longer interested in adopting the girl. The agency then placed the girl in a foster home in Greenbrier County.

But the Supreme Court had granted Kutil and Hess' motion for an emergency stay of Judge Blake's order, so the girl was returned to them the same day she had been placed in Greenbrier County.

In their petition, the couple argues that at least one of them should be considered as a possible adoptive parent.

"It is absolutely nonsensical for DHHR or the circuit court to remove the infant from the only home she has ever known simply because the court believes traditional families are the best environment for a child and as DHHR now appears to be attempting to avoid scrutiny by advocating for the removal of the child," the petition says.

Contact writer Justin D. Anderson at [e-mail] or 304-348-4843.