....even in West, by god, Virginia:

"Baby Girl C." Can Stay With Her Parents


Kathryn Kutil and Cheryl Hess won their case. They had had a 2-year-old
girl who had been in their foster care since she was born in December
2007 removed from their home by Fayette County Circuit Judge Paul Blake,
who had ruled that the state's Department of Health and Human Resources
had failed to seek a "traditional family-like setting with a mother and
father.

Blake ordered the child removed and the DHHR placed her in a second
foster home and Kutil and Hess sued. Today the West Virginia Supreme
Court ruled in their favor:

By means of this original jurisdiction action, Kathryn Kutil and
Cheryl Hess (hereinafter collectively referred to as “Petitioners”) seek
a writ of prohibition to bar enforcement of the November 21, 2008, order
(See footnote 1) of the Circuit Court of Fayette County. Petitioners
specifically are seeking to prevent the female infant, Baby Girl C.
(hereinafter “B.G.C.”), (See footnote 2) from being removed from their
foster home. B.G.C. was placed in Petitioners' home as a foster child by
the West Virginia Department of Health and Human Resources (hereinafter
“DHHR”) (See footnote 3) shortly after the child's birth. Petitioners
are a same sex couple whose home had been approved by DHHR for both
foster care and adoption. The removal of the infant was ordered at the
conclusion of an abuse and neglect permanency hearing at which the lower
court accepted the recommendation that B.G.C.'s case be transferred to
the adoption unit of DHHR. In its removal order, the lower court
directed that B.G.C. be moved from her temporary foster home and placed
in a household interested in adoption that is a “traditional family”
having a mother and a father rather than a household headed by a same
sex couple or single person.

...

Summary

Central to our deliberation in this case is the reason or
motivation underlying Respondent's decision to remove a child from her
foster care home. The motion to remove the child was not supported by
any allegation that B.G.C. was receiving improper or unwise care and
management in her foster home, or that she was being subjected to any
other legally recognized undesirable condition or influence. W.Va. Code
§ 49-2-12 (1970) (Repl. Vol. 2004); see also W.Va. Code § 49-2-14 (2002)
(Repl. Vol. 2004) (criteria and procedure for removal of child from
foster home). Likewise, no evidence supporting a legal reason for
removing the child was presented at the hearings. 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 B.G.C. had with Petitioners.
Moreover, Respondent deferred hearing testimony from Petitioners'
witnesses regarding their parenting abilities. Nevertheless, there also
was no indication that Petitioners provided B.G.C. with anything other
than a loving and nurturing home. As Respondent observed from the bench
at the November 21 hearing, “there has been absolutely no allegation
that these women have not cared for [B.G.C.] or the other kids and, in
fact, all of the evidence indicates that they have done very well and
have provided very well for the children.” 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.

***** It is more than apparent that the only reason why Petitioners
were being replaced as foster care providers was to promote the adoption
of B.G.C. by what Respondent called in his November 12, 2008, order a
“traditionally defined family, that is, a family consisting of both a
mother and a father.” *****

It was only by addressing issues he anticipated would develop and
believed would be problems at a later point in this case that Respondent
was even able to reach the subject of this conclusion. The conclusion
itself thus represents a blurring of legal principles applicable to
abuse and neglect and adoption. Moreover, even if our current statutes,
rules and regulations could somehow be read to support the adoption
preference proposed by Respondent, such a newfound principle would need
to be harmonized with established law. Under our current law which
encourages adoption by qualified foster parents, one of the Petitioners
seeking to adopt B.G.C. individually would at the very least need to be
considered if not favored in the selection of the prospective adoptive
home. (See footnote 22)

In the present case, all indications thus far are that B.G.C. has
formed a close emotional bond and nurturing relationship with her foster
parents, which can not be trivialized or ignored. State ex rel. Treadway
v. McCoy; In re Jonathan G. As such, it serves as a classic example of a
case in which the permanency plan for adoption should move quickly to
the desired result of a permanent home for B.G.C. One of the Petitioners
who has already adopted a child (See footnote 23) and appreciates the
tremendous responsibility adoption entails, has recently expressed the
desire to adopt B.G.C. Clearly, that Petitioner should not be excluded
from consideration for the reason stated by Respondent. These factors
all should serve to facilitate the selection process, which needs to be
completed as expeditiously as possible in order to further the best
interests of B.G.C. and in recognition and support of the parenting
investment which has been made.

IV. Conclusion

For the reasons stated in this opinion, the writ of prohibition
sought by Petitioners is granted.

*****People for American Way Foundation filed an amicus brief in this
case, along with the ACLU and the ACLU of West Virginia.*****


- - - - -

Which is one of the many reasons why I am a card-carrying member of the
ACLU...

Why aren't you? Don't you believe in the Constitution and the Bill of
Rights?