CHARLESTON – The state Supreme Court has sided with a same-sex couple who sought to prevent a judge from removing one of their foster children because they were not a "traditional" family.

In an unsigned opinion released Friday, the court granted Kathryn Kutil's and Cheryl Hess's petition for a writ of prohibition against Fayette County Circuit Judge Paul Blake's 2008 order that the 19-month-old girl whom the petitioners began caring for soon after her birth be placed in a foster home with a mother and father until she was officially adopted.

Blake agreed with Thomas Fast, the little girl's guardian ad litem, who had argued that it could be detrimental to the girl's mental well-being to be raised, either short term or long term, in a household consisting of homosexuals.

Blake granted Fast's motion to remove the girl over objections from both the petitioners and the state Department of Health and Human Resources.

The girl, identified in court documents only as B.G.C., was born in December 2007 to a drug-addicted mother. The newborn had cocaine and oxycodone in her system, physicians said. The biological mother failed two improvement periods offered by the DHHR, which gained custody of the girl shortly after she was born.

The girl came to live with Kutil and Hess just weeks after her birth. When the biological mother's parental rights were terminated on Oct. 8, a team met to discuss what to do with the little girl. All the members of the team agreed that she should remain in the Kutil and Hess home until she was officially adopted. Fast, the guardian ad litem, was the only member who didn't agree, the opinion says.

DHHR adoption officials also expressed reluctance to uproot B.G.C. from the only home she had ever known. While adoption was the best course of action, the team found, the DHHR also noted that the petitions had expressed interest in adopting the girl and gave a list of reasons why the home was appropriate.

In the end, Blake said the girl had to be removed partly because of Kutil's and Hess's sexual orientation and partly because the DHHR now argued that their foster home was over capacity with seven children, even though B.G.C. was in the home before some of the other children.

The Supreme Court, in its opinion, blasted the agency for its reasoning in supporting B.G.C.'s removal.

"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 B.G.C. would be best served by removing her from petitioners' care, but instead opted for a swift and ready solution to the problem the agency created," the court said.

"The agency simply turned a blind eye to the fact that B.G.C. 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 B.G.C.'s emotional, physical and mental development."

The court added: "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."

As to the couple's ability to adopt, state law says single people may do so. Kutil had noted that she tended to adopt B.G.C. on her own, not as a couple with Hess.

State law says a single person may adopt. But Fast argued that the statute leans towards married couples.

"No statutory citation was supplied to support this position and our research reveals no such stated preference," the court said. "Nor were we able to locate any legislatively assigned preference for adoption into a traditional home or any statutory definition of a traditional home for adoption purposes."

The court said there was nothing that showed Kutil and Hess weren't providing quality care to B.G.C. The court says that the bonds the girl has forged with her foster parents shouldn't be "trivialized or ignored."

The court further notes that Kutil already has one adopted child, is aware of the responsibility, and still wishes to adopt B.G.C. The justices say Kutil shouldn't be excluded as a potential adoptive parent simply because she and Hess are members of a non-traditional family.

"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," the court said.

Supreme Court case number: 34618

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