In Whose Best Interest?

By NANCY GIBBS

Mother and Father can take down the pictures and store the rocking horse in the attic, pluck the magnetic alphabet off the refrigerator door. Maybe they can find some other use for the room with the yellow wallpaper. Or they could close it up and seal it like a tomb so they can go about their grieving for the merry little girl they love and are about to lose.

In the tidy backyard of the Cape Cod-style house with the cranberry shutters, Jessica DeBoer is having a picnic with her dog Miles. Her mother watches her through the blinds on the kitchen window. Everything feels so very normal. But the clock ticks loudly and the blinds all stay down and an answering machine screens the phone calls. Reporters keep calling -- and sad friends, and adoption experts -- and strangers who feel sorry for them.

When the Michigan Supreme Court ruled that Jan and Roberta DeBoer, a printer and a homemaker, had no right to keep the baby they have tried to adopt for more than two years, it lit a long, scorching fuse on a time bomb. The DeBoers were given a month to turn her over to her biological parents in Iowa, Dan and Cara Schmidt. This afternoon they have 26 days left.

"I sit here and count the stupid hours and the days and mark them off a dumb calendar as to my last moment, my last hour, my last kiss." Roberta sits in the forest-green dining room, sipping herbal tea out of a mug decorated with little footprints, hearts and the words IT'S A GIRL. How is she holding herself together? "People can't understand," she says. "They think I'm falling to pieces nonstop in front of Jessi. But I would never do that." And then Robby DeBoer breaks down, heaving and weeping. The cries are not plaintive, not whimpers, but sobs that send her body shaking and her voice coming from deep inside her. And she is angry.

"We let our government make irrational decisions for children to suffer and be condemned." She wants to take the case to the U.S. Supreme Court. "They're going to walk away just like Michigan did and say, 'Wish we could have done something but there's nothing to do because our laws dictate otherwise.' I wonder if they could take their little two-year-old kids and walk into a black forest and just leave the child and walk away . . . And not feel the pain . . . How not to feel the pain . . .?"

In this case, everyone feels the pain. Here are Jessica's two sets of parents, those who conceived her and those who have raised her, fighting a passionate battle over who gets to keep her. Then there are all the other adoptive parents in the U.S., many of whom have been watching this ghastly spectacle unravel in the courts and go to sleep wondering whether their precious child will stay their child. And finally, of course, there is Jessica, the one party to the case who has most at stake and the smallest voice and is at the mercy of judges whose rulings at times have seemed little better than suggesting that she be sawed in half.

A LEGAL LABYRINTH

Cara Clausen was 28 and single, working in an Iowa shipping factory, when she got pregnant three years ago. She had just broken up with her boyfriend Dan, a trucker, to start dating Scott Seefeldt -- so it was Scott's name she put on the birth certificate when Jessica was born. Two days later, Cara waived her parental rights and put the baby up for adoption.

Robby DeBoer contracted an infection on her honeymoon, had a hysterectomy and so cannot have children of her own. She heard about Cara through a friend in Iowa and began negotiating to adopt the baby. After Jessica was born on Feb. 8, 1991, Robby and her mother drove from Ann Arbor to Iowa through a fierce snowstorm to see the child and set the proceedings in motion. They got signed parental-rights releases from both Cara and Scott, and the DeBoers' joy was complete. They were now Jessica's legal custodians, and in six more months, the adoption would be finalized. Cara wrote them a letter: "I know you will treasure her and surround her with love," she told them. "God Bless and Keep You All."

But within days, it all began to unravel. Cara saw her ex-boyfriend Dan Schmidt at work and told him everything -- that the baby she had just given up for adoption had been his all along. She began having second thoughts. She went to a support-group meeting of Concerned United Birthparents and heard other mothers' stories of the sorrow they felt at giving up their babies. On March 6 Cara filed a motion to get her daughter back, and a week later Dan did as well. Cara went out shopping for baby clothes.

The DeBoers were struck by lightning. They had done the miraculous, had found a healthy newborn to adopt, had followed all the rules, signed all the forms -- only to find that they might lose the baby. It was nearly six months before genetic tests indicated that Dan was indeed the real father; since he hadn't signed away his rights, the entire adoption proceeding was voided by an Iowa court two days after Christmas in 1991. The DeBoers were ordered to turn Jessica over.

But they decided to fight instead, and a legal stay permitted them to keep Jessica while the appeals proceeded. They argued that Dan was not a fit parent; why was he so intent on being a father to Jessica, they asked, when he had two other children by two other women whom he had made no effort to help raise? Robby wrote letter after letter to children's-rights advocates around the country. She talked to reporters. In January the Iowa Supreme Court agreed to hear the case, but the appeals process dragged on for months. Dan and Cara got married -- and waited to bring their daughter back home. That seemed all but assured when the Iowa Supreme Court upheld the lower-court ruling and said that while Dan's fitness as a parent was questionable and the court was tempted, for Jessica's sake, to leave her with the DeBoers, Dan's rights had priority over the baby's and so she belonged with the Schmidts.

! After losing in Iowa, the DeBoers tried to move the case to Michigan, and won their first victory. Last February, Judge William Ager of the Michigan Circuit Court, concerned that Jessica might never recover from losing the only parents she had ever known, ruled that she should stay where she was. He told the Schmidts that he understood their pain -- but that "prolonging this battle is going to have a terrible effect on this child." If they gave her up, he told them, they would be heroes, sacrificing their heart's desire for the sake of their child's well-being. They refused to concede.

And so it dragged on. In March the state appeals court threw out Judge Ager's ruling, saying Michigan had no right to ignore the Iowa rulings. On July 1, the state's highest court confirmed, 6 to 1, that Michigan had no jurisdiction in the case and that Jessica would have to be returned to the Schmidts in a month.

WHO'S THE VILLAIN?

A story that holds so much pain for so many people needs a villain. Each set of parents has found grounds to blame the other, and as the stakes rose and the story went public, the charges got uglier. DeBoer supporters claim it was Cara's lie about the father in the first place that started the trouble. But the Schmidts' advocates retort that at the time she gave up her baby, Cara was in a fragile state, without the help of psychological counseling or legal advice. And the courts could not punish Dan for Cara's deception; he never consented to the adoption in the first place.

Others critical of the DeBoers note that the couple knew early on that the adoption was in jeopardy -- and by continuing to fight while keeping custody of Jessica, says psychotherapist Annette Baran, who specializes in adoption issues, "they've managed to pervert the whole issue of best interests of the child. It's time that people realized that adoption is for children, not infertile adults." Jan DeBoer recoils at such charges. "The Schmidts accuse us of delaying the proceedings to help ourselves," he says. "But I want Jessi to know the truth -- that we only appealed for her own protection."

The one target everyone can hate with equal passion is the legal system that placed two families and a child on the rack for 2 1/2 years. Even if the DeBoers, having fallen in love with the baby, could not give up without a fight, their legal help could have advised differently. The DeBoers should have relinquished Jessica immediately, argues Beverly Hills lawyer David Leavitt, one of the country's pre-eminent adoption lawyers: "Any good adoption lawyer understands that if a birth mother changes her mind within a few weeks, and you resist, you're in for terrible grief."

Suellyn Scarnecchia of the University of Michigan law school took on the DeBoer case through the school's legal clinic, and defends her strategy to fight on. "People don't really understand the psychology of waiting and waiting for a child and bringing one home," she argues. "It is ridiculous to say, 'When you have a problem, give her up.' "

But some legal scholars argue that the DeBoers never really had a case. Federal law prevented Michigan courts from interfering with a custody proceeding under way in another state. As for Iowa, more than 20 years ago, the state supreme court raised eyebrows nationwide when it ruled that a churchgoing set of grandparents would provide a better life for a young child than the child's father, who was living as a bohemian in California. States everywhere reacted by writing laws to clarify paternal rights -- and Iowa wrote one declaring that biological parents have custodial rights unless a child has been abandoned. Only then are "the best interests of the child" considered. That meant that Daniel Schmidt, who never abandoned Jessica, had custodial rights, period. The Schmidts couldn't lose in Iowa, and when the DeBoers took the case to Michigan, they couldn't win.

There were other missing pieces. The adoption of Jessica was a privately arranged transaction. Michigan allows only agency adoptions, and the DeBoers would almost certainly have waited for years before finding a child. But Iowa allows for private adoptions, an arrangement that has become increasingly common as the number of parents seeking healthy infants has outstripped the supply 40 to 1. State adoption agencies can't possibly meet the demand, so prospective parents conduct their own searches, place classified ads, hire adoption lawyers to try to find a baby on their own.

Jessica's adoption, like so many private arrangements, occurred without the careful, painstaking counseling that adoption experts say is essential to protecting everyone's welfare. "One of the first things we would have done is bring this birth father in for counseling," says Bruce Rappaport, director of the Independent Adoption Center in Pleasant Hill, California. "Most birth fathers will accept some kind of compromise. It's rare that they won't budge. But in this case, nobody ever talked to anybody else. With adoption, it should be counselors, not lawyers."

A CHILD'S RIGHTS?

It is here that the story of Jessica promises to rip open the debate over what it means to be a parent, and what rights children have when their parents and guardians take refuge in the law. In many states the rights of biological parents are all but inviolable; only in extreme cases are courts willing to terminate a parent's right to custody. But as stories emerge of children who are plainly suffering the consequences of being treated more like property than people, the tide has begun to turn.

The story of Gregory K. in Florida brought the debate onto the national stage, when he successfully sued to "divorce" the mother who had abandoned him in order to remain with the foster family he had been living with for nearly a year. His was a rare victory: more typical is the story of Joseph Wallace, a three-year-old Chicago boy who spent most of his young life in foster care while his mother Amanda slipped in and out of mental institutions. In one of her pleas to the court for custody of her son, Amanda said, "I want to give him love, affection, something I didn't have." In February the court agreed to return Joseph to her: two months later, Amanda was charged with murdering her son by hanging him with an electrical cord.

In Connecticut two years ago, a teenager named Gina Pellegrino fled a New Haven hospital, where she had registered under a phony name, hours after giving birth to a girl. A search was made for the infant's biological parents, and Pellegrino's parental rights were terminated a few weeks afterward; the abandoned baby was placed for adoption. A few months later, Pellegrino reappeared and sued to regain custody, which would mean taking the baby out of a secure home and sending her to live with her mother in a homeless shelter. Late last year the state supreme court granted Pellegrino custody, evoking an enormous public outcry. "The best interests of the child were totally ignored," says state mental-health commissioner Dr. Albert Jay Solnit. "What was worshipped was the technicality of law and the mystique of blood ties."

As one of the most nationally publicized cases, the saga of Baby Jessica is bound to fuel the movement to change the way the law is applied. The DeBoers' whole legal strategy depended on the courts being willing to shift priority away from parental rights and toward what was in the best interests of the child. That way, even if the Schmidts' claims were considered legally valid, Jessica might still remain with the DeBoers to avoid a traumatic upheaval. The approach, lawyer Scarnecchia acknowledges, was an experiment "in that it says a child's rights are paramount in a custody case."

Some courts have begun to favor nurture over nature when a custody battle erupts. Denver juvenile court judge Dana Wakefield says he invariably considers the child's needs over the parents' demands. "In my courtroom, they stay where they've been nurtured," he says flatly. "You have to consider who the child feels is the psychological parent. If they have a good bond in that home, I'm not about to break it." In the DeBoers' case, he adds, the alternatives were not necessarily better for Jessica. "The other parents didn't have a good track record to simply hand the baby over to them. And to put her in another foster home until the decision comes -- I'd rather place her in one of the two choices, in which there's a fifty-fifty chance she'd be moved rather than a place you know she'll be moved from."

But the Iowa court declared that it could not and should not pay attention to the best interests of the child, that the only issue at hand in this case was the father. The Michigan Supreme Court deferred to Iowa's decision. Only if Daniel Schmidt was found to be unfit as a parent could the courts consider the rights of the little girl. This approach has made adoption advocates draw back in fury. "When you're dealing with a child who has had a 2 1/2-year relationship with a set of de facto parents," says Harvard law professor Elizabeth Bartholet, author of Family Bonds: Adoption & the Politics of Parenting and an adoptive mother herself, "it's outrageous to say the only issue that can be thought about is whether Dan Schmidt's rights were appropriately terminated or not."

Various child-development experts weighed in with their views in amicus briefs to the court. Moving the baby now, wrote Professor Solnit, who is also a senior research scientist at the Yale Child Study Center, could pose a grave risk to her development. In his clinical work, Solnit has found that for a child so young, being removed from a home and placed with people who, however loving, are strangers to her can lead to "a loss of intellectual capacity." The hour-to-hour, day-to-day experiences of the first two to three years of life, he argues, lay the groundwork for the child's personality. "One of the basic capacities that children develop in that period is the ability to trust an adult so that they can look ahead to a world that seems to them safe and reasonable, rather than a world that is unpredictable and unstable." These are issues the courts cannot afford to ignore, Solnit contends. "The courts shouldn't make this child pay the price of their lawmaking."

But the Schmidts' supporters insist that the courts have indeed considered the child's best interests by restoring her biological ties. "The law starts with the good presumption that it is in the best interests of children to be with their families, unless for some reason the family is inadequate," says Carole Anderson, vice president of Concerned United Birthparents, which is trying to restrict adoptions and strengthen the rights of birth parents to regain custody of children they have released. To reward the DeBoers' intransigence by letting them keep the child, Anderson says, would put all families in jeopardy. "If a noncustodial parent can come along and take a child in defiance of a court order," she says, "and get to another state and get a different order, we would have chaos for everyone."

Following public outcry over such notorious cases, the legislatures in many states are taking the lead. "If the law works to the disadvantage of the children," says Howard Davidson, director of the American Bar Association's Center on Children and the Law in Washington, "it's incumbent upon the legislatures to change the law. The courts can't change the law."

The Michigan legislature, having come under increasing pressure with each ruling against the DeBoers, is considering altering the state laws to weigh children's interests more heavily. Public opinion in the state is running 81% in favor of adoptive parents, like the DeBoers, in custody battles with birth mothers. They took their case to the public, since the wrenching image of transferring a child between families was bound to aid their cause. Last week they shared with TIME the letters they have written for Jessica to read in the future. "Often you have comforted me," Robby writes, "calmed down my fears and taken away my tears . . . But when the tears begin to fall and you look at me for reassurance and say, 'Mama's heartbroken,' I will not be able to console you with my loving kisses and say, 'It will all mend.' " And then mother turns on mother. "It will never mend, Jessi. It is Cara and the law that ((have)) broken you into a thousand pieces . . ."

$ Though they have made the rounds of papers and morning shows, the Schmidts in Iowa have been less visible than the DeBoers in Michigan. Moreover, the Schmidts' lawyer Pam Lewis says the couple "believe it's never in the child's best interest to be flaunted in public. It's not the trauma of the transfer that they're concerned about. But when she's 15 or 16 years old, she'll see the made-for-television movies about the case, and the terrible things that were said in the press. Can she have a normal life if her entire existence has been flaunted like a media doll?"

For all the clouds gathering over her, Jessica seems cheerfully unaware of her situation. When photographers descend to capture these last days, she holds her parents by the hand and breaks into the Barney theme song. "I love you, you love me," she sings, as her parents chime in gamely. "We're a happy fam-i-leeee."

She still has not met Dan -- but she did meet her new grandmothers, when they appeared unexpectedly in Ann Arbor last month. They watched Jessica play, they bathed her. "They were nice," Roberta recalls, and she told Jessica to call them Grandma. As they were leaving, Roberta recalls, Cara's mother thanked her and said, "Take good care of our baby." "I said, 'Well, don't you think we've done a pretty good job in the last 2 1/2 years?' She just looked at me real funny and turned and walked away. It literally tore me to a million pieces. That she couldn't give me that much."

Both sets of parents now have three weeks to make their preparations. The DeBoers say they are setting up a college fund for Jessica and are trying to ensure that she will get continued psychological monitoring and support. Last Friday lawyers for the two couples met behind closed doors with Judge Ager to work out the details of the transfer. The arrangement remained private, but the meeting was more cordial than past sessions. "I think what is dramatic about today is we all turned our attention to an event we know is going to occur and we all now focused on what is going to make that easy for the child," said Marian Faupel, the Schmidts' attorney.

Two weeks ago, Cara Schmidt gave birth to a second daughter, Chloe, at the same Cedar Rapids hospital where Jessica was born. She and Dan are looking for a bigger house. On the door of their small corner white frame home in Blairstown, a sign with carefully drawn hearts announces WELCOME HOME BABY SCHMIDT. When Jessica joins them, she will have a new name -- Anna Lee Jacqueline Clausen Schmidt.

Though it is hard right now to imagine, in some ways Jessica is lucky. She has two families fighting passionately for the right to love and protect and raise her in their home. There are children lingering in foster care, or under the roofs of parents who abandoned them every way but physically years before, who would envy a child whose presence is so precious to those around her. But right now it is hard to feel anything for Jessica other than enormous sorrow, and hope that her own resilience and the devotion of so many who wish her well will give her the strength to cope.

With reporting by Ratu Kamlani/New York, Elizabeth Taylor/Ann Arbor and James Willwerth/Los Angeles