CHARLESTON, W.Va. (AP) – The West Virginia Supreme Court has agreed to consider a case in which the judge ruled an infant would be better off with a “traditional” married couple than with the same-sex couple who had cared for her since birth.

In a 4-1 vote Dec. 10, the court agreed to hear the appeal of Kathryn Kutil and Cheryl Hess to a November ruling by Fayette County Circuit Judge Paul Blake. Chief Justice Elliott “Spike” Maynard, who is leaving the court at the end of the month, voted not to consider the case.

Kutil and Hess argue that Blake’s ruling sets a dangerous precedent for discriminatory treatment of nontraditional couples. State law allows a single person or married couple to adopt.

Blake issued his ruling after Kutil and Hess sought to adopt a two-year-old girl who had been in their foster care since she was born in December 2007.

The Department of Health and Human Resources placed the girl, who was born to a drug-addicted mother and was suffering from withdrawal, with the Oak Hill couple on Christmas Eve that year.

After Blake terminated the mother’s parental rights last month and the father could not be located, the DHHR moved to permanently place the girl and allow Kutil and Hess adopt her.

The child’s court-appointed legal advocate objected, however, arguing the baby’s placement should be up to the judge, not the DHHR.

Fayetteville lawyer Thomas Fast filed a motion Jan. 24 to remove the child because it had been placed in a “homosexual household,” according to documents filed with the Supreme Court.

In a Nov. 12 order, the judge ruled the DHHR had failed to seek a “traditional most family-like setting with a mother and father” after placement with the birth family failed.

Blake’s order finds that “in Fayette County, West Virginia a traditional family is considered to consist of both a mother and a father and that the most family-like home setting for a placement/adoption is in a home consisting of both a mother and a father.”

Nontraditional family settings can be considered by DHHR only if the agency “first makes a sufficient effort to place the child in a traditional home and those efforts fail,” the order said.

Blake ordered the child removed, and the DHHR placed her in a second foster home. The Supreme Court ordered her returned to Kutil and Hess.

Anthony Ciliberti, who is representing Kutil and Hess, declined comment when contacted Thursday.

A hearing is set for March 11.