The Battle Over a Baby

The Battle Over a Baby
By PAMELA PAUL
Published: July 22, 2009
http://www.nytimes.com/2009/07/26/magazine/26lesbian-t.html?th&emc=th


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.”

Kutil and Hess immediately hired an attorney. To their relief, in February, a circuit-court judge in Fayetteville, Paul M. Blake, permitted TiCasey to stay with them while her case was under review, though the women had to live with the unsettling knowledge that she could be taken away at any time. Kutil and Hess got the impression that Judge Blake did not approve of them as parents. For the next 16 months, until their case was decided by the West Virginia Supreme Court in June of this year, it seemed to the couple as if they were holding their breath.

“They tell you as a foster parent not to get attached, that it’s not the appropriate thing to do,” Kutil said. “But as a human being, that’s not possible. You don’t hold a baby like that and have them wrap their tiny fingers around yours and not have them enter your heart for good.”

KUTIL AND HESS’S goal, from the beginning, was to create a family. Hess was 42 when she and Kutil, who was then 36, met in 2004. Hess had been working at Dirty Ernie’s Rib Pit in Fayetteville when she stopped by the nursing home next door. Kutil was cooking hot dogs for a fund-raiser; Hess ordered hers with mustard and chili. They struck up a conversation and agreed to have dinner. “At first, I didn’t know she was gay,” Hess admitted. “I don’t have that gaydar, I got left out of that pool.”

Growing up in the faded mining town of Oak Hill, population 7,200, Hess was what she calls “a late bloomer.” She briefly married, she says, and didn’t come into her “gayness” until her 20s. Over dinner one night at Hardee’s, she said to her mother, “Mama, I think I’m gay.” Her mother said, “So?” Her father, a retired coal miner, was similarly accepting, if a bit worried. People can be so cruel, we don’t want you to get hurt, her parents said. But Hess was laid back about her sexuality. “I was never out there and about.”

In any case, it wasn’t easy to meet women in Oak Hill; the closest gay bar is an hour away. “We’re in a small area of the world; trust me, there ain’t that many of us,” Hess said. Highway signs pointing to Oak Hill, with its strip malls and dilapidated downtown, and Fayetteville, the county seat next door, neatly encapsulate the towns’ respective personalities. Fayetteville is a “Coolest Small Town,” so named by Budget Travel magazine in 2006 for its white-water rafting and Americana chic; Oak Hill is “Home of Marian McQuade, Founder of National Grandparents’ Day.”

When Hess, who earned her G.E.D. after quitting school in 11th grade, found out that Kutil was the Fayetteville nursing home’s director, she thought, Oh, God, I’m so out of my league. But their connection was immediate, and they’ve been together ever since. Two years into the relationship, they had several rescued cats and dogs, but both wanted children. After artificial insemination failed, Hess suggested they adopt through the foster-care system. “She’s always on the underdog’s side,” Kutil told me when I visited in March. There were certainly plenty of children who might need a home. West Virginia holds approximately 4,200 children in custody; nearly one-third live in group homes or institutions.

“I didn’t want to do it right out of the chute,” Kutil admitted. In her 20s, she had a job as a foster-care and adoption worker and was often saddled with twice the caseload she could handle; she quit after five years, calling it “hell, chaos.” “I knew there’d be days that were absolutely insane,” she said. But Kutil and Hess’s options for building a family were limited. Even though an estimated 65,500 adopted children already live with a gay parent, and lesbian and bisexual women are almost twice as likely as heterosexual women to report they have lived with and cared for a non-birth child, not all adoption agencies are open to same-sex couples. A 1999-2000 survey of adoption agencies found that only 60 percent accepted applications from gays. Similarly, not all countries permit same-sex couples to adopt internationally. But perhaps, Kutil and Hess thought, a match could be made between a couple like themselves and foster kids in need.

So in April 2006, Kutil and Hess expanded their three-bedroom home to five bedrooms and furnished it with bunk beds. They traded in their Jeep and their sports car for a minivan and an S.U.V. And that fall, after screening and training, they welcomed their first child, a kindergartner who arrived with a garbage bag of clothes and stayed for several months before her propensity to kick and abuse the couple’s dogs and cats led them to ask that she be placed elsewhere. Their next foster children, a sibling pair, Renee, then 9, and Ray, 7, seemed a better fit. Born to a father described by Child Protective Services as “low-functioning,” Renee and Ray had been passed along from aunt to uncle to neighbor, growing up in campers and tents, sometimes bathing under a hose. Their mother, Renee told Hess, used to “get mad and sit upon us. I’d lose my breath because she was a little chunky.” Their father eventually brought them in to social services and, according to Hess, said: “I just can’t do it. I can’t give them what they need.”

To Kutil and Hess, Renee and Ray were a godsend. Though the couple had always prayed for a baby, they were happy to care for whatever children came their way. They had decided on fostering, in the end, not only to find a family, Kutil says, but also to “do some good for children who needed a chance.” Renee and Ray were clearly in need. “We knew from the start we wanted to adopt them both,” Hess said. “We had our little family.”

BUT THERE WAS a lot that Kutil and Hess didn’t know about the children now living under their roof. For parents who wonder and worry about what happens during the seven hours their kids are in school each day, it’s hard to imagine not knowing what happened during entire years in the life of a child now in your care. “As a former foster-care worker, I can tell you, even the social workers don’t know a lot about these kids,” Kutil said. “They might come to you with head lice, and you don’t find out until the next day. Or siblings may have had sex with each other — but you don’t know that.”

Kutil and Hess knew Renee had been abused, but they didn’t know when, by whom or in exactly what way. She was overweight and had trouble handling basic hygiene; kids at school made fun of her. Within a week, she was calling Kutil and Hess Mommy. Things with Ray were more difficult. Certain behaviors were alarming and self-destructive. “He would bang his head repeatedly against the wall,” Kutil recalled. “Like a 2-year-old’s tantrum.” In the middle of the night, he loomed in the doorway of their bedroom, refusing to budge. After seven months of this, Health and Human Resources moved Ray 45 minutes away to live with a foster father trained to deal with special needs. “We really didn’t have a say,” Hess said. Renee took it hard. “Why do grown-ups keep taking my family away?” she wanted to know.

Fostering can be like a series of mutual tryouts, as children are rotated in and out of homes via the cumbersome bureaucracy of social services. Until the 1990s, the goal of foster care was to reunite biological families. Adoption was viewed as a failure. In practice, this meant that children spent years cycling through foster homes in the hope that they could eventually return to their birth parents. By the mid-1990s, it became clear that long-term foster care can be detrimental to children; moreover, efforts to bring biological families back together were often unsuccessful.

To remedy the problem, the federal government passed the Adoption and Safe Families Act in 1997, which radically changed the nation’s approach to foster care. The act stipulated that children either be returned to their birth families within a short period of time or be moved to a permanent placement, offering states financial incentives based on the number of adoptions. This led to a significant increase in foster-to-adoption cases. In 1999, 46,000 children in foster care were adopted, up from 17,000 in 1990.

Yet the number of people willing to take in the cast-off, troubled and often abused children who bounce around the nation’s foster-care systems has declined over the past 25 years, and not all foster parents intend to adopt. (Approximately half a million children are currently in the system, with 130,000 waiting to be adopted.) In today’s competitive parenting culture, children are often seen to reflect our best selves, an improvement on our own pasts, a quixotic hope for our future. Foster children, by contrast, can seem like used goods. “When you get older foster kids, chances are they’ve been through quite a bit,” Kutil explained. “It’s hard to turn their lives around.”

Kutil and Hess tried to accommodate as many kids as possible, which usually meant fielding two or three requests each month. Most placements were stopgap measures; the kids returned to their families. Quite a few cried when it was time to go. “We had one 16-year-old who begged me to let her stay,” Hess recalled. The hardest part was thinking about what might happen when they returned home. “Sometimes you know the circumstances they left, and you just pray that if they go back, it’s gotten better.”

Once in the Kutil-Hess home, Renee started to thrive. After a worrisome beginning at the local public school, where Renee’s palpable yearning to please “led her down a bad path,” Kutil and Hess transferred her to Catholic school. She lost weight and took up karate. “I’m going to make good money and buy you a Jaguar,” she would tell Hess, spending hours on the computer practicing fashion design. Her vulnerability now bears a tentative veneer of confidence, and she participates in every school talent show — “whether she can sing or not,” Hess noted wryly.

Though they couldn’t adopt Renee jointly, West Virginia law allows either woman to adopt as a single parent. In late 2007, shortly before TiCasey arrived, Kutil decided to go ahead. The case didn’t land in Paul Blake’s court but went before Fayetteville’s other circuit court judge, John W. Hatcher,instead. It was a swift and smooth process, and Renee became Kathryn Kutil’s daughter in June 2008.

To Renee, the switch from her family of birth to that of her adoptive mothers marked a fresh start. She even gave herself a new name. And she clung fast to her new family, most fiercely drawn to TiCasey — willingly changing her diapers and happily bottle-feeding her. Like Kutil and Hess’s other foster children, Renee couldn’t understand why holding onto TiCasey had become such a problem. “Renee doesn’t feel like you must be born from a family to be family,” Kutil explained. “She truly feels in her heart that a family is what you make of it.”

THE BONDS BETWEEN birth parent and birth child, between birth parents and their foster counterparts, between foster child and foster parent are often uneasy and rarely fixed. Renee still bumps into her birth father at Wal-Mart and occasionally says she misses him. She also refers to her brother Ray’s foster father as “Dad.” And while TiCasey’s integration into the Kutil-Hess home has been particularly fraught, transitions are seldom uncomplicated.

The next children to become permanent fixtures in the Kutil-Hess household were Ronnie (who goes by his middle name) and Ruth. They were 12 and 5 when they arrived in June 2007 with their two older sisters. (The older sisters ultimately went elsewhere.) Ronnie and Ruth’s parents were incarcerated at the time; Kutil and Hess never found out why.

By 2008, Kutil said, she knew she wanted to adopt both Ronnie and Ruth. It wasn’t to be. Once out of prison, their mother longed for more involvement, calling the Kutil-Hess home regularly. She was, Kutil said, “very boisterous about her personal rights to her children.” Letting go of your birth parents isn’t easy either. Ronnie is intensely loyal to his mother, Kutil said, “despite everything he’s been through.” In the end, he didn’t want to leave his birth parents behind. “If you ask a 14-year-old whether he wants to be adopted and he says no, you should take into account his opinion,” she told me. Kutil became Ruth and Ronnie’s legal guardian instead; the children will be legally emancipated at 18.

For foster parents, Kutil says, there’s “this sense of having no control over your household.” Their job, as Kutil sees it, is to bring a sense of structured calm to an often necessarily ephemeral situation. The family says a prayer before eating dinner together every night, and bedtimes are strictly enforced. Given Kutil’s well-paying job in nursing-home administration, Hess, who has mostly held odd jobs and spent 11 years as an Army reservist, serves as homemaker. “It’s as normal as you can get without a man here,” Kutil summarized. But their home isn’t quite their own. Foster parents must accommodate visits with birth families, which are regulated by law, as are psychological services. Rules for disciplining the kids are set by the state. Social workers can pop in at their discretion.

And always, a child’s future and a foster parent’s hopes are at the mercy of outside forces. In October 2008, when TiCasey was 10 months old, her mother, unable to kick drugs, permanently lost all parental rights. On the morning of Halloween, the Department of Health and Human Resources issued a “permanency plan” advocating adoption. “Kathryn Kutil and Cheryl Hess have expressed their desire to adopt TiCasey, which would be appropriate,” the document stated. But in recommending who should adopt TiCasey, the agency overstepped: according to state policy, a permanency plan should recommend only whether a child should be adopted, not who should adopt.

The situation grew even more complicated that night. At 10:30, long after most trick-or-treaters had gone to bed, the phone rang in the Kutil-Hess home. A 6-year-old had been discovered wandering around barefoot at a nighttime football game, dressed only in jeans and a tank top. Could they take her in? At the time, Kutil and Hess had TiCasey, Renee, Ronnie, Ruth and another set of siblings temporarily in their care. Kutil told the supervisor from the Oak Hill Department of Health and Human Resources that another child would put them over the permitted limit of six. According to Kutil, the supervisor said she’d get a waiver, and at 2:30 a.m., a social worker dropped off Lynn, a saucer-eyed girl with long, stringy hair, wearing a pair of mittens on her feet.

FOR ALL THE MADNESS of caring for as many as seven children at a time and fostering nearly two dozen in three years, nothing compared with the bureaucratic twists and frustration of trying to hold onto TiCasey. One week after Lynn’s arrival, on Nov. 6, a hearing was called to rule on TiCasey’s permanency plan. Once again, Thomas Fast, TiCasey’s court-appointed attorney, insisted not only that TiCasey be removed but also suggested that the court should rule on the D.H.H.R.’s practice of disregarding sexual orientation. Addressing Judge Blake directly, Fast said, “Let’s duke it out here, Your Honor, this whole issue of the homosexuality.”

During the proceedings, Judge Blake seemed to see things Fast’s way. “It’s nothing against these ladies,” he said. “They’ve given this child good care while this matter is pending before the court.” However, he continued, “this court’s opinion is that the best interest of a child is to be raised by a traditional family, mother and father.” He directed the department to relocate TiCasey within two weeks.

Devastated, Kutil and Hess had their lawyer, Anthony Ciliberti, file an emergency stay and a writ of prohibition — an extraordinary appeal made before a proceeding has come to a conclusion — with the West Virginia Supreme Court. Judge Blake agreed to a follow-up hearing on Nov. 21, Ciliberti’s last chance to persuade him that TiCasey should stay with Kutil and Hess. Ciliberti was to handle character witnesses while the D.H.H.R.’s attorney would prepare an expert witness, Christi Cooper-Lehki, a child psychiatrist from West Virginia University. When the agency first contacted Cooper-Lehki, it was “very much in support of Kathryn and Cheryl keeping this baby,” Cooper-Lehki told me. “They were considered among the best foster parents they had.” She was asked to talk about the psychological literature supporting gay parenthood. But the day before the follow-up hearing, the agency informed Cooper-Lehki that her testimony would no longer be needed.

On Nov. 21, the Department of Health and Human Resources expressed support in court for Fast’s motion to remove TiCasey, despite its objection earlier that year. Not because Kutil and Hess were lesbians but because “it came to D.H.H.R.’s attention yesterday that the Kutil-Hess home is over capacity.” It turned out that the waiver for Lynn — their Halloween arrival — was never obtained. In any case, such waivers are given only to keep siblings together. Despite the timing — Lynn arrived only a week before TiCasey’s first permanency hearing — Kutil said she was sure the local agency hadn’t deliberately put their home over capacity. Thomas Fast said everyone involved in the case was taken aback. When I asked what he thought was behind the agency’s flip-flop, he said, “Frankly, I think the department got cold feet and attempted to sidestep the issue at hand.”

Kutil and Hess were well aware that building a family through the foster system meant not only adding children but also having children taken away. Still, if overcrowding was the issue, why not remove the least-bonded child, the 6-year-old Lynn, who had been there less than a month, rather than a baby who had known no other home? “Children begin to show measurable signs of attachment by 6 months of age,” says David Brodzinsky, a developmental psychologist who specializes in adoption. To separate a child TiCasey’s age from the only parents she has known, Brodzinsky says, “makes no sense whatsoever from a psychological perspective.”

Judge Blake viewed it differently. Uprooting an 11-month-old baby, while not ideal, wouldn’t be traumatic. Who among us remembers what happened when we were a year old? The child was to be moved to a “more appropriate setting” by noon the next day.

But where? Anticipating Judge Blake’s decision, a D.H.H.R. worker called weeks earlier, Kutil says, to ask if she or Hess knew of a suitable family. Desperate to secure TiCasey’s well-being, Hess scoured her own foster-parent network, settling on Amy and Roger Thompson, a couple who had adopted a 2-year-old and were fostering an infant. The day after Judge Blake’s final decision, Kutil, Hess and a D.H.H.R. escort took TiCasey to the Thompsons’ home. “I was as numb as I’ve ever been,” Kutil recalled. “It was the most hollow, empty, helpless time for us.”

At the Thompsons’, the women tried to suppress their tears and quietly left once TiCasey was distracted with toys. For Amy Thompson, the scene was painful. “I was brought up with Christian beliefs,” she told me. “But if they’re good enough to be foster parents, why aren’t they good enough to be adoptive parents?” TiCasey’s removal was particularly tough on Renee. “She couldn’t bear it,” Kutil said. “She said, ‘I just can’t lose another person.’ ”

That Monday, with the kids in school and Kutil back at work, Hess fell apart. “I felt lost,” she told me when I visited in March. “TiCasey has always been with me. She was with me all day long while the kids were at school. You wake up one day, and all her toys, clothes, crib are still there, but no baby. It’s just you. I couldn’t get out of my head how she must be wondering, Why had we left her? Where were the other kids?”

Then, the day before Thanksgiving, the Thompsons informed the D.H.H.R. that they were no longer interested in adoption. They’d only had TiCasey for five days, but Amy’s brother had become seriously ill; between that and the other kids, TiCasey was too much. So the agency swiftly moved TiCasey to yet another foster family. Three hours later, the West Virginia Supreme Court granted an emergency stay, allowing TiCasey to return to the Kutil-Hess home until it could hear their case in March. Ciliberti called Kutil, who then phoned Hess with the news. “I’m not usually that emotional,” Hess said. “But I just couldn’t keep it together.” She sat down on the edge of the bed and cried. A local social worker brought TiCasey back in time for Thanksgiving; when her car pulled up to the house, TiCasey climbed over her to get to Kutil. Renee held TiCasey and murmured: “My baby sister, my baby sister. I knew we had to get her back, and we did.”

AT 7 ON A Sunday night in March, I sat with the Kutil-Hess family as they gathered around the kitchen table, snacking. Cats hopped on the table and were shooed off, small dogs barked underfoot. Display cabinets teemed with keepsakes and animal figurines. Lynn and Ruth slid on and off Hess’s and Kutil’s laps. Ronnie entered briefly, then retreated to homework and video games. Both he and Renee are in seventh grade; both are on the honor roll. Renee was eager to display her latest trophies; she recently earned her gray belt in karate. Soon, the kids were scrambling to show me their prizes. I heard all about jazzercise, basketball, track, cheerleading, golf camp. Ruth, an exceptionally pretty blonde, produced photos of her triumph in the Little Miss pageant at last year’s Pumpkin Festival.

But the center of attention was TiCasey, a slight blue-eyed toddler who scampered around the table. TiCasey raised her hands in the air, and the family shouted, “Praise the Lord!” in recognition. The other kids broke open photo albums documenting her milestones. Then one of the girls pulled out an album from Kutil and Hess’s “unity ceremony,” which took place in 2005 at the White Oak Country Club. The girls tittered over the photographs, which show Kutil and Hess in matching cream pantsuits. There were pictures of doves, a ring pillow, a calla-lily-topped cake. “Look, you may kiss the bride!” Ruth squealed. Renee was grinning at a photo in which Kutil and Hess hold hands. “You never do this,” she said, “you’re never like this!”

The Kutil-Hess case is big news in Oak Hill. “The most surprising thing is how supportive everyone has been,” Hess told me repeatedly. “You think that because you’re gay, it’s going to be open season.” Among comments posted online in response to local reports, most have been positive, even from people who admit they “don’t approve of their lifestyle.” In Wal-Mart, a woman they knew slightly approached them and said: “I’ve been keeping up with that stuff in the paper. It’s just ridiculous, they ought to be ashamed.” All the kids’ teachers have wished them well. “In a way, being from a small town helps,” Hess offered. “People know us personally.”

When asked at the county courthouse, in November, to describe her relationship with Hess, Kutil said: “We don’t hang on each other or grope each other or anything. They don’t see that. All they see is that we care very much for each other. ” She paused. “It’s not like we go marching down in a gay-pride parade. We didn’t ask to be anybody’s poster children here. We just wanted a child or children and a family.” A rush of frustration, humiliation and despair overcame Kutil’s usual reserve as she began to cry before the court. “And here we sit today in front of judge and jury. For what? What have we done? We took this baby in that stayed up for three weeks, all night long, and we did without sleep. We’ve done nothing wrong but love this baby and love her with everything we had.”

ON JUNE 5, a year and a half after TiCasey first came under Kutil and Hess’s care, the West Virginia Supreme Court issued a unanimous opinion overturning Judge Blake’s decision. The court condemned Blake’s decision to ignore the bond forged between TiCasey and her foster parents, and it criticized the Department of Health and Human Resources for proposing that TiCasey, rather than a more recent placement like Lynn, be removed. Adoption proceedings should begin immediately, the court urged, suggesting that either Kutil or Hess “would at the very least need to be considered if not favored in the selection of the prospective adoptive home.”

Yet the court did not rule on the department’s practice of disregarding sexual orientation when considering foster parents or specifically endorse gay adoption. As in so many states around the country, in the absence of a firm policy, individual social workers, agencies and attorneys still make decisions about who can and cannot be a foster or adoptive parent. On June 9, Kathryn Kutil signed papers to begin the adoption process, which will require the approval of Health and Human Services and confirmation by a county judge. The process could take months.

After an initial spurt of excitement and relief, Kutil and Hess have retreated into wariness. They haven’t taken in any new foster kids since Judge Blake’s November order;all their efforts have been focused on the children they think of as their own. “Every day, you wake up and have this perfect baby, and you’re like this normal family,” Hess said. “Yet you sit and wait for somebody else to decide if you get to keep her. You’re at the mercy of other people deciding your life.”


Pamela Paul is the author, most recently, of “Parenting, Inc.,” a book about the business of child rearing. Her last article for the magazine was on pregnant women with cancer.