A Service of Rainbow Law

The West Virginia Supreme Court of Appeals, that state’s highest court, has issued an order blocking the removal of a young foster child from the home of a lesbian couple, rejecting a ruling by Fayette County Circuit Judge Paul M. Blake, Jr, that state law favors "traditional families" and this child should be removed because her foster mothers would not be allowed to adopt her. State ex rel Kutil & Hess v. Blake, 2009 WL 1579493.

According to the high court, which issued its "per curiam" (unsigned but unanimous) ruling on June 5, West Virginia’s adoption statute does not establish any preference for "traditional families" in the adoption process, and the question whether same-sex couples can adopt was not properly before the circuit court.

The child, identified by her initials in the opinion as B.G.C., was born on December 8, 2007, testing positive for cocaine and oxycodone at birth. Under West Virginia law, such test results on a newborn mandate the filing of an abuse and neglect petition against the birth mother, and within days, Judge Blake had granted the state’s Department of Health & Human Resources (DHHR) legal custody of the child, and had appointed Thomas K. Fast, a Fayetteville attorney, to be the child’s guardian ad litem. The guardian ad litem, compensated by the court, is supposed to represent the child’s interest in legal proceedings.

Within a few weeks, DHHR had placed the child in the home of Kathryn Kutil and Cheryl Hess as foster parents. Kutil and Hess were apparently quite popular with the administrators at DHHR, since they were providing a good home for numerous foster children, usually the statutory maximum of five at a time, and Kutil had actually adopted a foster child with the approval of the other judge at the Fayetteville Circuit Court.

But this placement did not sit well with attorney Fast, who filed a motion with Judge Blake "to Order DHHR to Remove Child from Physical Placement in Homosexual Home & Other Injunctive Relief." Fast, who evidently disapproves of gay people having custody of children, sought not only to remove the child but to get a court order against DHHR ever placing children with gay foster parents. Judge Blake rejected the request for immediate removal of the child, since DHHR was supporting the placement. The child remained with Kutil and Hess, to the evident consternation of Fast.

Under West Virginia law, a birth mother can reclaim custody of her child if she shows rehabilitation, but B.G.C.’s birth mother proved incapable of this, and her custody was permanently terminated in the fall of 2008, after which DHHR convened a meeting with Fast and various department officials to determine the permanent disposition of B.G.C. The department concluded that the placement with Kutil and Hess should continue, and noted that Kutil had indicated an interest in adopting the child, which the department viewed as a desirable disposition for B.G.C. Fast flew into action, filing a motion with the court to remove B.G.C. immediately and place her with a "traditional family," which he defined as a married heterosexual couple.

Complicating matters, DHHR placed an additional foster child with Kutil and Hess, which triggered a new argument for Fast, as they now had more foster children in their home than the statutory maximum. Seizing upon this, Judge Blake, ordered the child’s removal and immediate placement with a "traditional family." Judge Blake opined that it was "unfair" for the child to be placed with a same-sex couple if a "traditional family" placement was available, expressing the view that under West Virginia law "traditional families" are favored in the adoption process, and that the law would not allow Kutil and Hess to adopt the child jointly. Kutil and Hess promptly petitioned the Supreme Court for what is called a "writ of prohibition," that is a direction to the trial judge prohibiting the action that the trial judge had ordered.

The trial judge stayed his order briefly, but ultimately directed that the child be removed and placed with the "traditional family" that had been tentatively identified. B.G.C. ended up living with a "prospective adoptive married couple" briefly, but they informed DHHR that they would not adopt the child. Then the Supreme Court issued an emergency stay pending its ruling on the writ of prohibition, and DHHR agents immediately retrieved the child and returned her to her foster mothers.

A few days later, however, Judge Blake again ordered removal of the child. The Supreme Court quotes large portions of Blake’s decision in its opinion. Blake stated "that, if at all possible, it is in the best interest of children to be raised by a traditionally defined family, that is, a family consisting of both a mother and a father. The court concludes that non-traditional families, such as the intervenors [Kutil and Hess], should only be considered as appropriate permanent/adoptive placements if the DHHR first makes a sufficient effort to place the child in a traditional home and those efforts fail. In other words, if the DHHR has attempted in good faith to secure a traditional family to adopt the child and the DHHR’s attempts fail, then a non-traditional family may be considered as an adoptive placement. This did not occur in the present case."

Blake ordered that the child be removed from the Kutil/Hess home and that the removal "should be completed over a two week transitional period" in recognition of whatever bonds had been formed between the child, now almost a year old, and her mothers. DHHR had been opposing removal, but suddenly switched its position, probably at the instance of Fast, who brought to their attention that the Kutil/Hess home was already housing more foster children than were authorized by the statute. DHHR suddenly switched sides and supported Fast’s position based on its own mistake in placing too many children with Kutil and Hess.

Responding to testimony from the expert witnesses at the hearing, Blake conceded that "the Kutil-Hess household may be the most appropriate adoptive placement for the child, but it is unfair not to allow the child the option to be adopted by a traditional family. The child should be given the opportunity to be adopted by mother-father adoption and not be locked into a single parent adoption." This last comment reflected Blake’s further findings that "the intervenors can not adopt this child as a couple because of statute. The intervenors argue that they are the only proper parties to be considered for the adoption of the child; however, under West Virginia law, only married couples, married persons with consent of their spouses, or single persons may petition to adopt a child. For this reason, the court concludes that the intervenors cannot lawfully petition together to adopt B.G.C., only one of the two intervenors may petition for adoption."

Before Blake’s written opinion could be issued, Kutil and Hess secured an emergency stay from the Supreme Court, so the child has remained with them.

In its opinion, the Supreme Court said that the issue of adoption was not properly considered by Judge Blake when he was ruling on Fast’s motion to remove the child from the Kutil-Hess home. The issue was whether there was any reason to terminate the foster placement at that time. "It was thus inappropriate for the lower court to rule as a matter of law on the subject of the propriety of joint adoption of a child by a same-sex couple because it was not a matter pending before the court." The court noted that Kutil was planning to petition to adopt as a single person, which was clearly within the statute.

The court criticized DHHR for changing its position based on the "overcrowding" argument, pointing out that the agency had itself created the situation by placing too many children with Kutil and Hess. Furthermore, the court opined that in light of the bonding between the mothers and B.G.C., it seemed that removing children more recently placed with the couple who had not yet bonded with them was the solution to this problem, not removal of B.G.C. By the time the court issued this decision on June 5, B.G.C. had been living with Kutil and Hess for more than 17 months.

"No evidence was produced at the hearings as to Petitioners providing anything but quality care in their foster home," wrote the court, "or of any particular problems B.G.C. was experiencing in her foster home environment," so the trial court’s main concern in ruling on Fast’s motion should have been "what effect the disruption of relocation would have on the emotional and physical well-being of the individual children in the home. The length of time each of the foster children was in the home no doubt would affect the strength of the emotional bond that had developed between each child and Petitioners as well as their sense of comfort and security with their home environment. The only home B.G.C. had ever known in the eleven months of her life [at the time of the removal hearing] had been Petitioners’ foster home. Surely bonding had occurred between the infant and Petitioners to a much larger extent than with children who had lived in the household for a much shorter period of time."

"The situation before us involves a removal decision where the foster home environment or care provided in a foster home is not in question, and removal of a child is necessary to correct problems created by a bureaucratic error. When presented with such situations, courts need to safeguard the best interests of the children," wrote the court, but "No such examination or balancing occurred in the present case." The court also noted that since the hearing the "overcrowding" problem had been resolved, and so was no longer relevant. The court found that Blake’s removal order "constituted clear error."

Having overruled Blake’s order, the court was not going to leave standing his erroneous characterization of West Virginia adoption law. It pointed out that the statute expressed no preference as between the three classes of prospective adoptive parents it identifies: married couples, single people, or a married person with the permission of his or her spouse. Blake, named as respondent on the petition before the court, had argued in his brief that "statutes indicate a preference for adoption by married couples," but the court refuted this contention, finding that "there simply is no legislative differentiation between categories of eligible candidates for adoption."

The court pointed out that Blake had been presented by Frost with no reason to remove B.G.C. from the Kutil-Hess home other than the contention that a "traditional family" adoption was the preferred permanent disposition for this child. On the other hand, the court pointed out, "there also was no indication that Petitioners provided B.G.C. with anything other than a loving and nurturing home. Without any information that the foster care placement with Petitioners was not proceeding well, there was no legal reason for the court to remove B.G.C. from the only home she has known." The court also pointed out that West Virginia law actually encouraged adoption of children by their foster parents, and ruled that Kutil "should not be excluded from consideration for the reason stated by the Respondent."

Thus, the court concluded its opinion with the suggestion that the court "facilitate" the adoption process "in recognition and support of the parenting investment which has been made" by Kutil.

The case attracted substantial attention, with numerous amicus briefs being filed with the Supreme Court on both sides. Both Lambda Legal and the ACLU LGBT Project filed briefs on behalf of various professional associations concerned with child welfare, and of course the anti-gay Alliance Defense Fund was on the scene to argue that placing children with gay people is harmful. The opinion takes on special significance because West Virginia’s highest court has not previously ruled on the issue of gay parenting, so the strongly affirmative evaluation of the efforts of Kutil and Hess as foster parents is most welcome.