The West Virginia Supreme Court ruled that an 18-month-old foster child should be allowed to remain with the only parents she has ever known.
In a unanimous opinion, the court turned back Fayette County Circuit Judge Paul Blake Jr.’s order that the girl should be taken away from Kathryn Kutil and Cheryl Hess and placed with a heterosexual couple who might adopt her. The court noted that there was no evidence that the girl’s placement with the lesbian couple was in any way harmful to her:
“As a matter of fact, the court was never presented with any actual evaluation of the home or evidence of the quality of the relationship” the girl had with Kutil and Hess, the justices said. “All indications thus far are that (the girl) has formed a close emotional bond and nurturing relationship with her foster parents, which can not be trivialized or ignored.”
The justices said Blake only ruled in favor of removing the child to promote placing her with a heterosexual couple.
“The conclusion itself represents a blurring of legal principles applicable to abuse and neglect and adoption,” the decision said. “Even if our current statutes, rules and regulations could somehow be read to support the adoption preference proposed by (Blake) such a newfound principle would need to be harmonized with established law.”
The court also said that Kutil and Hess should be considered “if not favored” in the selection of the girl’s eventual adoptive home. The girl has lived with Kutil and Hess her entire life, after having been born to a drug-addicted mother in 2007. The Department of Health and Human Resources placed the infant with Kutil and Hess, but later sought to remove the girl, even though Kutil and Hess were foster parents to six other children. DHHR claimed that they only wanted to alleviate what they saw as too many children in the Kutil-Hess household, but the Supreme Court didn’t buy it:
“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.
West Virginia law allows three types of parents to adopt: a single person; a married person with permission from his or her spouse; or a married couple. The court noted that West Virginia Law does not place a preference on the type of person who adopts. One of the two women hopes to adopt the child as a single parent.