The West Virginia Supreme Court has agreed to hear a case involving a lesbian couple’s appeal of a lower court ruling that removed a child they had reared from birth because the judge wanted the child placed with a married opposite-sex couple.

Fayette Circuit Judge Paul Blake originally agreed to allow Kathyrn Kutil and Cheryl Hess to be foster parents for the infant girl, following a positive assessment by the Department of Health and Human Resources.

Court records show that the little girl was born to a drug addicted mother and the baby had had cocaine, opiates and benzodiazepines in her system. Shortly after birth the baby went through drug withdrawal. The father was unknown.

The Department placed the child with Kutil and Hess, who had been approved as foster parents, when it could not find any blood relatives of the mother.

But nearly a year later when the couple applied to adopt the little girl both the Department and Judge Blake balked.