Justices won't block transfer of girl, 2 2 dissenters say Jessica is at risk

July 31, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- With two justices voicing deep anguish over a dispute that touches "raw nerves," the Supreme Court refused yesterday to get involved in two couples' emotional wrangle over who gets to raise a little girl.

By a vote of 6-2, the court allowed Michigan courts to send 2-year-old Jessica DeBoer to Iowa to live -- for the first time since birth -- with her natural parents. The child must be in Blairstown, Iowa, by Monday.

An Ann Arbor couple who got the child as a newborn infant after the mother gave her up have been caring for Jessica since. They have fought to adopt her, but they lost the right to keep her because state courts ruled that the natural parents -- now married -- had a stronger legal right to her.

Justice Harry A. Blackmun, writing a dissent for himself and Justice Sandra Day O'Connor, declared: "While I am not sure where the ultimate legalities or equities lie, I am sure that I am not willing to wash my hands of this case at this stage, with the personal vulnerability of the child so much at risk."

None of the six other justices made any comments as they voted to deny a last-minute plea by lawyers for the little girl to let her stay in Ann Arbor until the Supreme Court took some final action on her ultimate legal fate. Only eight justices took part, since retired Justice Byron R. White has left the court and the Senate has not yet approved Judge Ruth Bader Ginsburg to replace him.

The little girl's lawyers warned the court earlier this week that "Jessica is on the precipice of psychological devastation." The case, the lawyers added, is "about the inhumane consequences that will be inflicted on an innocent child whose welfare was never considered."

Lawyers for the natural parents, however, disputed that dire assessment. "It is clear," they told the court, "that this child will be transferred to fit biological parents who have prepared a loving home for her."

They said a doctor who had supervised visits to the child by the natural mother and father "has seen the child developing a meaningful relationship" with them.

So far, no state court has decided what would be in the little girl's "best interest," and that was not an issue before the Supreme Court yesterday.

State courts have treated the case as a contest between natural parents who have never been ruled to be unfit, and an unrelated couple who have been making a home for the child since the first weeks of her life.

In that kind of contest, Iowa and Michigan courts declared, the natural parents win.

Although the Ann Arbor couple, Roberta and Jan DeBoer, have not lost the legal fight entirely as a result of the Supreme Court's order yesterday, it appeared that they were out of options except a long-shot chance that the court might at least hear their legal claim to keep Jessica after they file a formal appeal.

Yesterday's order dealt only with the issue of the child's immediate transfer to Iowa.

The child's mother, then Cara Clausen of Cedar Rapids, Iowa, agreed to give up the infant at birth in February 1991 but changed her mind a few days later.

She notified the man she said had fathered the child, Daniel Schmidt, who then began an effort to claim parental rights.

In the meantime, the child had been taken to Ann Arbor to begin living with the DeBoers, who intended to adopt her. The legal contest over Jessica was waged first in Iowa, where the courts ruled that Daniel Schmidt had a right to Jessica as her natural father and restored maternal rights to Cara Clausen after she married Mr. Schmidt. It was then fought further in Michigan courts, as the DeBoers sought to solidify their claim to Jessica.

The case has become a war of words and emotions.

Lawyers for the DeBoers have accused Cara Schmidt of not wanting the child and then changing her mind, and they have accused Daniel Schmidt of having abandoned two other children he fathered.

Lawyers for the Schmidts have accused the DeBoers of using a lawyer to coerce Cara Clausen into giving up the child, of refusing to pursue their legal claim when it was still an active issue in Iowa courts, preferring Michigan courts instead, and of misleading authorities about their own fitness to be parents.

When the dispute finally came to an apparent close in the Michigan Supreme Court, it was decided on the basis of the duty of one state court to respect a custody decision of another state's court, and the obligations imposed by federal law on interstate child transfers.

Justices Blackmun and O'Connor, although insisting that they were not voicing any views on the legal questions at stake, appeared to lean toward the DeBoers' claim.

They spoke of Jessica as "a child of tender years" who had been "nurtured by . . . a loving couple led to believe through the adoption process and the then-single biological mother's consent, that Jessica was theirs."

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