Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, June 16, 2009

Case Law Development: Preference for "Traditional Family" Insufficient Justification for Removing Child from Foster Care Placement

The West Virginia Supreme Court, writing for the first time on the issue of the propriety of same-sex parenting, granted a writ of prohibition against a trial court's order to remove a foster child from the home of a lesbian couple.  The trial judge had premised the removal on his theory that state adoption statutes prefer "traditional families" (i.e., headed by a heterosexual married couple).   However, the supreme court noted that no adoption petition had been filed and the issue of adoption was not presently before the court -- only the placement decision.

The child had been placed a few days after birth with the couple, who also fostered other children.  The GAL filed a motion to remove the child and an order prohibiting DHHR from ever placing children with gay foster parents.  The Department of Health and Human Resources opposed the motion and the trial court denied it. After mother's rights were terminated in fall 2008, at the permanency hearing, the GAL renewed the motion to remove the child, now arguing that since the department had placed an additional foster child with the couple, they now had exceeded the statutory maximum for foster children. 

The judge granted the removal order now supported by the department as a means of curing their error in placing too many children in the foster home.  However, the supreme court granted the writ of prohibition on the basis that, in the meantime other children had left the home so the statutory maximum was not violated.  Even if it were, however, the court noted that the court did not approach the solution to the excessive placement with the proper focus on the child.

The situation before us involves a removal decision where the foster home environment or care provided in a foster home is not in question, and removal of a child is necessary to correct problems created by bureaucratic error. When presented with such situations, courts need to safeguard the best interests of the children by examining evidence of the emotional, physical and mental needs of the individual children under the particular circumstances of a case, and then balancing the relative interests of the children in order to decide which child or children would be less traumatized or detrimentally affected by being removed from the home. No such examination or balancing occurred in the present case.

Moreover the supreme court noted that the removal was more obviously based on a dissaproval of the same sex foster parents and a blurring of the adoption code and the abuse and neglect code. Because adoption was not at issue in the permanency placement hearing, the court found that the trial court's ruling as a matter of law on the propriety of adoption by same sex couple was unnecessary and inappropriate:

    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 [the child] 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. ... 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 [the child] had with Petitioners. ... Without any information that the foster care placement with Petitioners was not proceeding well, there was no legal reason for the court to remove [the child] 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 [the child] 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.

State ex rel Kutil & Hess v. Blake, (West Virginia Supreme court of Appeals, June 5, 2009)
opinion online (last visited June 15, 2009 bgf)

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It's interesting to see all this hooplah about "non-traditional" families, who appear to be loving and supportive parents, when you see all the bad things that can happen in "traditional" faimilies:

Posted by: RustyShackleford | Sep 8, 2009 1:02:39 PM

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