West Virginia Lesbian Foster Moms in Court

Here’s a link to an article about a case now pending before the West Virginia Supreme Court.    There’s some television footage of the argument here along with news coverage.

As with a number of states I’ve discussed, West Virginia bars adoption by unmarried couples.    That effectively bars lesbian and gay couples from adopting, because West Virginia won’t allow lesbian and gay couples to get married.   (Indeed, as I’ve said before, I strongly suspect the desire to exclude lesbian and gay couples from adoption without having to enact an explicitly  anti-lesbian/anti-gay adoption policy is one reason for the sudden interest in “married couples only” adoption laws.)

What’s unusual is that while West Virginia does bar unmarried couples from adopting, it does not bar unmarred couples from becoming foster parents.    And so begins the story.

BGC was born to a drug addicted mother in December 2007.  On December 25, 2007 the state placed her with Kathryn Kutil and Cheryl Hess, a lesbian couple who had been approved as foster parents.    Theirs is the only home BGC has ever known.

At some point, however, the state apparently decided that BGC was not going to be reunited with the woman who gave birth to her.   It follows that would be better off placed for adoption than remaining in foster care.   (I’m reading between the lines here, as the news coverage doesn’t fill in all the details.   But assuming for the moment that it was correct to say that the child would not be reunited the original mother’s abilities, it might well make sense to ensure the child is adopted rather than remaining in foster care.)  

But here’s the rub.   Kutil and Hess could not adopt BGC because, you’ll remember they are not married.   Only a married couple could adopt BGC.  That means BGC had to be removed from Kutil and Hess’s care so she could be adopted by a more “traditional” family.   (It appears that the trial judge believed that a more “traditional” home would necessarily be better for the child.   That’s actually a separate reason, I think, worthy of separate discussion.)   What’s really remarkable to me is that it does not appear that state has any particular traditional home in mind.  In other words, there is no specific married couple out there waiting to adopt BGC.   The mere figure of a generic married couple is supposed to be the best option here.

Now the case has gone to the West Virginia Supreme Court, which heard argument earlier this week.   The Court seemed particularly concerned about the well-being of the child.   It’s virtually unquestionable that moving BGC from the only parents she has ever known is going to be traumatic.  So the Court finds itself in a dilemma.

Given the confines of West Virginia law, BGC’s interests point in two different directions.  BGC has an apparent interest in her ongoing relationship with her mothers, who are the only parents she has known.   To be separated from them will cause her harm.   But BGC also has an interest in having a permanent home with two legal parents.   And the home she lives in cannot be made permanent under existing law, just as her mothers cannot be legally recognized as such.

It’s easy to suggest a way out of the dilemma:  Let Kutil and Hess adopt.   Then the child gets a permanent home with legal parents and she gets to stay with the people who care for her.   But laying that out is the easy part.   Harder is figuring out how a court can reach that result by the interpretation of West Virginia law.    It seems the women have not raised a general challenge to the West Virginia law.  They simply want what is best for their child.

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