Experts blame system's delay, state laws' diversity in Baby Jessica case

August 06, 1993|By Ann LoLordo | Ann LoLordo,Staff Writer

When delegates to a national conference on uniform state laws picked up their morning newspapers in South Carolina earlier this week, they saw a photograph of a crying toddler, strapped in a car seat en route to the biological parents she has never known. The nasty custody battle over Baby Jessica -- fought in two states, over 2 1/2 years -- had finally ended.

While adoption attorneys, family law specialists and child welfare advocates may disagree on the impact of the case, they agree on this: The law took precedence over the best interests of the child. And, to prevent future interstate tugs-of-war, adoption proceedings across the country should be standardized, several argue.

"We think there is a crying need for uniformity in this area, if there ever was a need for uniformity," said Robert C. Robinson, a Maine lawyer who, as a member of the the National Conference of Commissioners on Uniform State Laws, has helped draft a uniform adoption act.

During the meeting in South Carolina, delegates worked on a proposed uniform adoption law. And the talk was about Baby Jessica.

"How can they not talk about it?" Mr. Robinson said of his colleagues. "It seems to me the courts were more concerned with the rights of the adults," he said.

The courts, he added, did "nothing to preserve and protect this baby from the clear and palpable burden of being torn away from the only parents she has known."

Several factors, however, contributed to this outcome: the duration of the legal fight, an early court order to allow Jessica to remain with the Michigan couple who wanted to adopt her, pending their appeals, and the dispute over which state had jurisdiction in the matter.

A unique case

And they make the Baby Jessica case unique, said Steven Kirsh, an adoption attorney in Indianapolis and past president of the American Academy of Adoption Attorneys.

"This is an exceptionally newsworthy case but not one that predicts anything about the future of adoptions," he said. "I've been involved in about a thousand adoptions. I've only had two cases ever where the birth parent challenged to withdraw their consent to an adoption. They weren't successful."

But what's not unique about this case "is the amount of time it took for this case to be resolved in the court system," said William L. Grimm, an attorney with the San Francisco-based National Center for Youth Law.

"There's still way too many children for whom that court process takes too long."

Mr. Kirsh and other lawyers suggested that Jan and Roberta DeBoer, the Michigan couple who took custody of Jessica within days of her birth, were partly to blame for the child's anguish. Within a month of the baby's birth in Iowa, Jessica's biological mother, Clara Clausen, sought to revoke her adoption consent. After lying about the identity of the child's father, she notified the baby's real father, Dan Schmidt, who then tried to regain custody of the child.

At that time, the baby was a month old.

But it was nine months later before an Iowa court ordered Jessica's return to her birth parents. "In a sense they created their own disaster," Mr. Kirsh said of the DeBoers. "They should have relinquished custody when the child was a month old . . . because under Iowa law they couldn't win."

That's because under Iowa law, a father must consent to an adoption. Once tests determined Dan Schmidt to be Jessica's father, the Iowa court could only keep her from him by finding that he was an unfit parent.

When prospective adoptive parents ask Daniel M. Clements what to do if a birth mother changes her mind, the Baltimore lawyer and adoptive parent says:

'Give the baby back'

"There is only one answer: Give the baby back.

"This is not only a battle that can't be won, it's a battle that shouldn't be won. . . ." said Mr. Clements. "The law is clear in virtually every state in the country, that birth parents have time to change their mind and the law rightfully requires the return of the child."

But the DeBoers wouldn't give up, and the Iowa court permitted them to retain custody of Jessica while they appealed its decision. When the Iowa Supreme Court upheld the lower court ruling and ordered Jessica's return to Mr. Schmidt, another nine months had passed. Jessica was nearly 18 months old and her biological parents had been married for six months.

The DeBoers refused to give up Jessica and took their fight to Michigan, where a judge decided that it was in Jessica's best interest to remain with the DeBoers. Eventually, the state's highest court ruled that the Iowa decision, which returned Jessica to her biological parents, must prevail.

The U.S. Supreme Court refused to intervene. By then, Jessica was 2 1/2 years old.

"Once there was a protracted battle over jurisdiction, whether Iowa could retain the case, then inertia sets in," said Jay Elliott, a Columbia, S.C., lawyer and chairman of an American Bar Association panel on custody and family law.

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