CHARLESTON, W.Va. - A Fayette County judge erred by assuming a 15-month-old girl would be better off being adopted by a married couple, the lawyer for the lesbian couple who has cared for the child for most of her life told the state Supreme Court justices Wednesday.

The infant, identified in court documents only by her initials B.G.C., was born to a drug-addicted mother in December 2007. On Christmas Eve 2007, the state Department of Health and Human Resources placed her with Kathryn Kutil and Cheryl Hess, a same-sex couple who had already been approved as foster parents.

Almost a year later, Circuit Judge Paul M. Blake Jr. ordered the child removed from Kutil and Hess' home so that she could be potentially be adopted by a more "traditional" family, one with a mother and a father.

Fayetteville attorney Anthony Ciliberti Jr., representing Kutil and Hess, said Wednesday that Blake failed to consider what was best for the child.

There are three categories of people who may legally adopt a child, he said: a single person; a married person with permission from his or her spouse; or a married couple.

"I don't believe there is any basis under West Virginia law for interpreting 'most family-like' as being a mother and a father," Ciliberti said.

Thomas Fast, the lawyer who was appointed to oversee the child's legal interests, said it was clear that having two legal parents is better than being forever limited to one, which is what would happen if the child was adopted by one of the women.

"If we're going to do what's in the best interest for the child, we should find [her] a legal mother and a legal father," Fast said.

Justice Robin Davis, who has twice led "Year of the Child" initiatives during her time as chief justice, interrupted to ask if anyone had considered the consequences of removing the infant from the only real home she had ever known.

"Nothing could be worse than to rip a child out of a family that has bonded [with her] for two years," Davis said.

Fast maintained that the trauma of being removed from a loving home early in life was outweighed by the benefit of having two adoptive parents over a lifetime.

"I don't have any real problem with the preference for two parents over one at the outset [of the placement process], but once the child has bonded [with a foster family], what about the child's rights?" asked Justice Margaret Workman.

"Our state statute [on adoption] makes no distinction between two parents and one parent," Davis said.

Fast replied that logically, a man and a woman would be the best choice to raise the child.

Chief Justice Brent Benjamin noted that the purpose of the hearing was to determine the future of one child, not to address the best interests of children generally.

"It's case by case," he said, noting that the guiding principle of each such case is the best interests of the child.

. "That's why the polar star is looking at what's in the best interest of the child."

Assistant Attorney General Angela Ash, counsel for the DHHR, acknowledged that the agency initially approved the child's adoption by TK, but then backed off that position and currently has no long-term plan for the child.

"You mean to tell me that a child is this old, and you're still in the planning phase on where this child should be?" Workman demanded. "[She's] not just like a sack of potatoes that gets taken over to a parking lot and handed to someone new."

"I have not been told a final recommendation [by DHHR]," Ash said.

In his written filing, Blake said that sexual orientation had played no role in his decision to steer the child toward a possible adoption by a married couple.

"It was clear at the hearings, however, that [my] use of the term 'traditional' referred to a two-parent, rather than a single-parent household," the judge wrote.

Ciliberti said that his clients had not argued that they were being denied equal protection under the law because they did not want the case to focus on their sexual orientation.

"As Miss Kutil testified [at a previous hearing], she said she did not want to become a poster child for anyone's cause," he said. Instead, she wants to be left alone to raise her family, he said.

The court is expected to issue its opinion later this year.

Reach Andrew Clevenger at acleven...@wvgazette.com

 or 304-348-1723.