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W. Va. Lesbian Couple Fights to Keep Baby

by Kilian Melloy
Thursday Dec 11, 2008
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A West Virginia family has taken its case to the state Supreme Court, arguing that their prospective adoptive daughter should not be taken from their home and placed with a "traditional" family simply because the couple that has cared for the infant since her birth are two women.

The Charleston Daily Mail reported in a Dec. 11 story that Cheryl Hess and Kathryn Kutil appealed the decision, made by Judge Paul Burke of the lower Fayette Circuit court, on the grounds that Burke had no authority to reassign care of the girl to a mixed-gender married couple for no reason other than that Hess and Kutil are a same-sex couple.

Moreover, Hess and Kutil claim that the court’s attempt to take their adoptive daughter infringes on their rights.

Hess and Kutil also claimed that West Virginia’s Department of Health and Human Resources had backed their bid to adopt the 11-month-old infant, prior to revising its stance on the basis that the baby created a situation in which there were too many children in the women’s care.

According to the article, the couple sees the court’s intervention in their domestic arrangement as "setting a dangerous precedent" that could imperil future adoptions by unmarried or same-sex couples or single prospective parents.

Under current state law, unmarried individuals may adopt children, the article said.

The couple posited that the state was concerned with politics rather than the welfare of the infant.

The West Virginia state Supreme Court agreed Dec. 9 to take up the case, the article said.

Court records indicated that the infant had been born late last year to a woman who had abused drugs. The infant arrived with opiates and other substances in her system, and suffered withdrawal as a neonate.

With no record of a father, and no willing relations to assume her care, the state’s Department of Health and Human Services allowed the newborn a home with Hess and Kutil last Dec. 25, at the age of about two and a half weeks.

Kutil had adopted a 12-year-old daughter, the article said, and the couple have been cleared by the state as adoptive parents.

A legal advocate for the infant moved to have the baby reassigned last January; a subsequent court action ended the parental rights of the baby’s biological mother on Nov. 6, and at that time the court considered a proposal from the Dept. of Health and Human Services for the infant’s adoption by Kutil and Hess, the article said.

However, the same legal advocate spoke out against that proposal. Judge Blake ruled that the infant should be removed from the women’s home and placed with a married couple of mixed gender.

The article quoted attorney Anthony Ciliberti, who represented Kutil and Hess.

Said Ciliberti, "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."

The case goes before the state Supreme Court on March 11, 2009.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor, writing about film, theater, food and drink, and travel, as well as contributing a column. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.

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