The Battle Over a Baby

On Christmas Eve in 2007, the State of West Virginia bestowed upon Kathryn Kutil and Cheryl Hess of Oak Hill a relative rarity in the foster-care system: a newborn. The baby girl, TiCasey, was born on Dec. 8 to a longtime drug addict, father unknown, and entered the world with cocaine, opiates and benzodiazepines in her bloodstream. For two weeks after delivery, she went through withdrawal, unable to sleep and crying incessantly. When not being held by a hospital nurse, she was put in special rocking machines to help relieve her pain. Still suffering from tremors and extended crying jags, TiCasey arrived at Kutil and Hess’s home, where she was met by five other foster children all clamoring to hold her.

Over the previous two years, the couple fostered a total of 18 kids between the ages of 1 and 16; all had endured some form of abuse or neglect. While not quite a “blank slate,” TiCasey (her middle name — all except one of the children mentioned in this article are identified by their middle names to protect their privacy) was as close as most foster parents get to a child whose grim history might conceivably be overcome in a loving home. “We were just so overjoyed,” Hess recalled. “We were in disbelief that we had this beautiful redheaded baby — because you never think you’re going to get one.”

Despite three weeks of little sleep, Kutil and Hess knew they wanted to adopt TiCasey. “We were in love with her from the get-go,” Hess said. “She was this really special little being.” But it wasn’t up to them. Shortly after she was brought to their home, TiCasey’s court-appointed attorney, Thomas K. Fast, came to make a routine visit. Fast’s behavior struck Kutil and Hess as distressingly unusual. He declined offers to take off his coat or to hold the baby, Kutil says, and, by her clock, left after just seven minutes.

Fast then filed a motion with the circuit court in Fayetteville to order the Department of Health and Human Resources (the D.H.H.R.) to “remove child from physical placement in homosexual home.” The motion described the Kutil-Hess household as “comfortable and physically safe for the infant” where TiCasey “seemed to be doing well.” It then stated that children reared by homosexuals were more likely to be sexually or otherwise abused and to become homosexual themselves.

Kutil and Hess were stunned. They had been upfront with the local D.H.H.R. about their relationship, and it had never been a problem with their other foster children. Was it somehow O.K. for a lesbian couple to care for older kids no one else would take in but not for a newborn whom another set of more “deserving” parents might want?

While the laws surrounding same-sex marriage are clear-cut, the laws regarding same-sex parenthood are often murky or nonexistent. “Gay parenthood is much more porous,” says Jennifer Chrisler, executive director of the Family Equality Council, a Washington-based advocacy group. Albeit with less fanfare than in recent marriage rulings, several states have sought to limit same-sex foster care and adoption. Last year, Arkansas passed a ballot initiative prohibiting adoption by unmarried couples, which effectively makes it impossible for gay parents to adopt jointly. Utah and Michigan have similar laws; Mississippi and Florida ban adoption by same-sex couples outright. But for the most part, Chrisler says, “parenting law is determined by case law rather than legislation. It’s state by state, county by county, courtroom by courtroom.” See The Battle Over a Baby New York Times