West Virginia

Back in January I wrote a post about Kathryn Kutil and Cheryl Hess, who had had the 2-year-old girl who had been in their foster care since she was born in December 2007 removed from their home by Fayette County Circuit Judge Paul Blake, who had ruled that the state's Department of Health and Human Resources had failed to seek a "traditional family-like setting with a mother and father."

Blake ordered the child removed and the DHHR placed her in a second foster home and Kutil and Hess sued.  Today the West Virginia Supreme Court ruled in their favor:

By means of this original jurisdiction action, Kathryn Kutil and Cheryl Hess (hereinafter collectively referred to as “Petitioners”) seek a writ of prohibition to bar enforcement of the November 21, 2008, order (See footnote 1) of the Circuit Court of Fayette County. Petitioners specifically are seeking to prevent the female infant, Baby Girl C. (hereinafter “B.G.C.”), (See footnote 2) from being removed from their foster home. B.G.C. was placed in Petitioners' home as a foster child by the West Virginia Department of Health and Human Resources (hereinafter “DHHR”) (See footnote 3) shortly after the child's birth. Petitioners are a same sex couple whose home had been approved by DHHR for both foster care and adoption. The removal of the infant was ordered at the conclusion of an abuse and neglect permanency hearing at which the lower court accepted the recommendation that B.G.C.'s case be transferred to the adoption unit of DHHR. In its removal order, the lower court directed that B.G.C. be moved from her temporary foster home and placed in a household interested in adoption that is a “traditional family” having a mother and a father rather than a household headed by a same sex couple or single person.

...

Summary

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 B.G.C. 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. W.Va. Code § 49-2-12 (1970) (Repl. Vol. 2004); see also W.Va. Code § 49-2-14 (2002) (Repl. Vol. 2004) (criteria and procedure for removal of child from foster home). Likewise, no evidence supporting a legal reason for removing the child was presented at the hearings. 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 B.G.C. had with Petitioners. Moreover, Respondent deferred hearing testimony from Petitioners' witnesses regarding their parenting abilities. Nevertheless, there also was no indication that Petitioners provided B.G.C. with anything other than a loving and nurturing home. As Respondent observed from the bench at the November 21 hearing, “there has been absolutely no allegation that these women have not cared for [B.G.C.] or the other kids and, in fact, all of the evidence indicates that they have done very well and have provided very well for the children.” Without any information that the foster care placement with Petitioners was not proceeding well, there was no legal reason for the court to remove B.G.C. 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 B.G.C. 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. (See footnote 22)

In the present case, all indications thus far are that B.G.C. has formed a close emotional bond and nurturing relationship with her foster parents, which can not be trivialized or ignored. State ex rel. Treadway v. McCoy; In re Jonathan G. As such, it serves as a classic example of a case in which the permanency plan for adoption should move quickly to the desired result of a permanent home for B.G.C. One of the Petitioners who has already adopted a child (See footnote 23) and appreciates the tremendous responsibility adoption entails, has recently expressed the desire to adopt B.G.C. Clearly, that Petitioner should not be excluded from consideration for the reason stated by Respondent. 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.

IV. Conclusion

For the reasons stated in this opinion, the writ of prohibition sought by Petitioners is granted.

People for American Way Foundation filed an amicus brief in this case, along with the ACLU and the ACLU of West Virginia.

Back in October we noted that the Family Policy Council of West Virginia was pressing the Governor and state legislature to put an anti-gay marriage amendment on the next ballot based entirely on a poll they took that reportedly showed that more than 70% of voters would support such an amendment.  Shortly thereafter, the call was seconded by the West Virginia Convention of Southern Baptists and now the Family Policy Council is starting to mobilize right-wing support in order to force the Governor and legislature to place an amendment on the ballot  

Members of West Virginia's religious communities are mobilizing to protect traditional marriage.

The Family Policy Council of West Virginia has taken the lead in asking Democratic Governor Joe Manchin and the legislature to let voters decide whether to change the state's constitution to prohibit same-sex marriage." Jeremiah Dys, founder of The Family Policy Council of West Virginia, explains the apparent conservative viewpoint.
 
"They do not want their government setting a policy, and they especially do not want courts imposing a system that...deprives children of a mom or a dad -- and so we're simply asking our legislature, we're asking our governor especially, to lead the effort to allow West Virginians to do what they want to do," he notes.

As we noted last time, West Virginia does not have a petition process allowing citizens to gather signatures and place a constitutional amendment on the ballot so any such amendment must first pass through the state House and Senate, both of which are controlled by Democrats, so it is up to the Family Policy Council to pressure them into letting West Virginians “do what they want to do” and pass an anti-gay constitutional amendment so as to ensure that the courts don’t “deprive children of a mom or a dad.”

The Family Policy Council of West Virginia, which is affiliated with Focus on the Family, the Family Research Council, and the Alliance Defense Fund, commissioned a poll of registered voters that found, lo and behold, that they would vote for an anti-gay marriage amendment:  

The Family Policy Council of West Virginia has released the findings of a new poll it commissioned on the issue of marriage in West Virginia.  The poll reveals significant support among West Virginia voters for a state constitutional amendment defining marriage.

“West Virginians want to define marriage for themselves,” said Jeremy Dys, the FPC’s president and general counsel.  “They do not want their government to set a policy – and they especially do not want a court to impose a system – that knowingly deprives children of a mom or a dad.  The results of this poll demonstrate that now is the time for a marriage amendment in West Virginia.”

The poll, commissioned by the FPC and performed in late July by Advantage, Inc., found that 73% of the more than 500 registered West Virginia voters surveyed say they would support an amendment worded, “Only the union of one man and one woman shall be valid or recognized in this state.”

The findings of the poll, available at www.familypolicywv.com, suggests that an additional 73% of West Virginia voters would be “more likely” to vote for a candidate who favored an amendment defining marriage as the union of one man and one woman.

It is pretty common for right-wing groups to commission polls that just happen to “prove” that the population at large shares their agenda.  But in this case, the FPC was so taken with the findings of their small poll that they are demanding action from the Governor … and now:

As the general election approaches, a Christian evangelical group has issued an ultimatum to Gov. Joe Manchin: call a special session to pass a proposed constitutional amendment banning same-sex marriage, or face the wrath of voters.

The Family Policy Council of West Virginia told the governor on Oct. 9 that he had until Wednesday to agree to call the Legislature into session. The conservative group, formed in March, cites polling it commissioned of around 500 registered voters that it says found 73 percent supporting an amendment defining marriage as a "union of one man and one woman.''

"The donors to this organization, as well as my board, are asking -- rather stridently -- that we release the poll to the public as soon as possible,'' Jeremy Dys, the group's president, said in a letter to the governor's office. "If he has determined that the timing is not right, the duty I have to our donors and the Board of Directors requires that I release this as soon as possible.''

…

Amending the constitution would also require a statewide vote. Dys said such a vote should take place next year, when no legislative seats are up for election, so "no politician should fear displacement from their current position, should that be of any concern,'' his letter said.

But Dys also called for a special session this year, arguing "the current legislature is a known quantity and our analysis shows strong support for the passage of such a resolution.''

Following the rejection of the Right’s political agenda in the last election, there have been a number of news articles written in recent months about a potential split emerging within the evangelical political community, with newer leaders pushing to incorporate issues such as the environment and poverty into the agenda, while old-school leaders seek to quash any efforts to dilute their traditional anti-choice, anti-gay message.  

From this split, some new right-wing leaders appear to be emerging, such as Richard Land who seems to be attempting to position himself as the Right’s new powerbroker, seemingly at the expense of James Dobson.  For his part, Dobson has been keeping something of a low profile, perhaps chastened a bit by the controversy he generated when he suggested that presidential hopeful Fred Thompson was not a Christian.   

Other than appearing from time to time to declare that he won’t support or vote for Rudy Giuliani or John McCain, Dobson has been relatively quiet as of late – but that doesn’t mean that his organization, Focus on the Family, has become any less influential or involved in politics, especially at the state level. Just in the last two days, it has been reported that FOF has hooked up with a new “state policy council” in Washington and is affiliated with a similar organization in West Virginia, both of which have a similar goal:  pushing the right-wing agenda at the state level and energizing right-wing voters ahead of the upcoming elections.