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The tug of war over Baby M Young father fights for daughter given up for adoption without his consent Sunday, February 27, 2000 By Barbara White Stack, Post-Gazette Staff Writer
A little girl who has been the focus of a legal dispute for so long that, at age 4, she's still called "Baby M" is on the edge of a traumatic change.
She'll soon leave the couple she's been with all her life for a parent she's seen sparingly over the years. Her journey started when her mother gave her up for adoption at birth, an adoption agency placed her without getting her father's consent, then he demanded custody and pursued it all the way to the state's highest court.
Now a decision by the state Supreme Court has sent a warning to adoption agencies: Failing to get approval for placement from both birth parents jeopardizes adoptions.
The ruling places more power in the hands of birth parents. If the mother or father withholds consent for adoption, then either may demand custody without having to compete for their child with the prospective adoptive couple.
The decision is a victory for Baby M's father. But his anguish and that of the couple who wanted to adopt his daughter could have been avoided had the adoption agency followed a routine procedure.
"This is what happens when you try to cut corners in adoption," said Mary E. Schellhammer, the lawyer with Southern Alleghenys Legal Aid Inc. who represented the child's father. "You ruin people's lives."
Fathers like the one in this case are exceptional.
It is the rare single teen-age dad who wants custody of his child and pursues it for four years.
Because they so seldom come forward, fathers are a forgotten element in the adoption equation, says Madelyn Freundlich, executive director of a nonprofit organization devoted to improving the quality of information on adoption.
When a father does step up, she said, "He is viewed as a troublemaker messing up a really great plan."
The plan in this case was Erica Erdley's. In spring 1995, she and Alphonso Andrews conceived a child. They were both Johnstown High School students. She was 16, he, 18.
Erdley told Andrews of the pregnancy almost immediately, and he informed his parents. But Erdley didn't tell hers.
By fall, Andrews' mother, Brenda Andrews, felt she had to do something.
"I told her, 'Anything could be wrong with you, honey. You could have a miscarriage.' " She called Erdley's mother, Cheryl Erdley, in hopes that the teen-ager would get prenatal care.
Shortly afterward, in November, Erica Erdley traveled two hours west to Pittsburgh to live at Genesis House, which is associated with the adoption agency, Genesis of Pittsburgh. She and the baby's father argued repeatedly in telephone conversations about her plans to place their baby for adoption.
On Jan. 5, 1996, the day after Baby M was born, Erica Erdley signed a document granting custody to Genesis and giving the agency permission to seek adoptive parents. Although it did not have permission from the baby's father, Genesis gave Baby M to Darrell and Cindy Matthews of Forest Hills.
The mixed-race couple seemed a perfect match for this biracial child. They were married but unable to have children. Darrell Matthews had a good job with an insurance company. Cindy Matthews planned to become a full-time mother.
Less than two weeks later, Erdley signed a consent for adoption in which she relinquished her parental rights to the baby so she could be adopted. The trouble is that a baby cannot be adopted without the termination or relinquishment of both parents' rights. And Andrews hadn't signed anything. He wanted his daughter.
"I knew when I got older it would not sit well to have given up my child," he said.
In late January, Andrews and his mother went to Schellhammer at Legal Aid. Andrews didn't know where his baby was. He didn't know the names of the prospective adoptive couple, and he wouldn't learn them for a year. "They had my baby, and they said I had no right to know their names," Andrews said.
On Feb. 6, 1996, a month after the baby's birth, Schellhammer asked a Cambria County judge to grant custody of Baby M to her father.
Had the matter been decided in Andrews' favor then, or had the Matthewses voluntarily surrendered the baby immediately, the bond between them and Baby M would have been the thin width of 30 days. Now it is 1,500.
He said, they said
Baby M got to this crossroads mainly because of decisions made before she was born.
Although Andrews, now 22, argued with Erdley about the impending adoption, he didn't inform Genesis that it didn't have his permission to give his baby away.
He says now that he didn't know then, when he was an 18-year-old high school student, what he was supposed to do.
He'd already gotten Erdley in trouble with her parents, he said, and he didn't want to cause more by disrupting her family's plan to place the baby for adoption.
"I didn't want to stir up more controversy with her family before the baby was born because her family didn't like her being with me," Andrews said. He felt more comfortable seeking the baby after Erdley gave up her rights because he didn't want to hinder her from keeping the baby if she decided against adoption.
Despite Andrews' inaction, the adoption agency still had a duty to seek his consent for the placement, experts say. Senior Westmoreland County Common Pleas Judge Gilfert Mihalich, who wrote a book on Pennsylvania law, "Mihalich on Adoptions," said adoption agencies must do what is necessary to assure unassailable placements. To accomplish that, he said, they should seek the father's consent before and after the birth.
"The [agency] attorney must do it to prevent this whole thing from blowing up in their face and causing trauma to the child," said Mihalich, who presided over Westmoreland County's Orphans Court, the branch of court that performs adoptions, for 11 years.
In the adoption industry, Mihalich's advice is considered "best practice," according to Freundlich, executive director of The Evan B. Donaldson Adoption Institute. "In-person contact with the father before the birth is extremely helpful," said Freundlich, a lawyer and former social worker.
Washington County lawyer Richard Amrhein, who represents Family Adoption Center, Downtown, said that although sometimes fathers can't be found, he makes every effort to talk to fathers in person before their babies are born.
"If we have a name, we will track it down. If we have an employer, we will track it down. If we have any lead, we will go after it. We have gone so far as to track down [high school] yearbooks. We have tracked down people in jail. On occasion, we hire a private investigator," said Amrhein, of Peacock Keller Ecker & Crothers in Washington.
Most unwed fathers don't want the babies, he said, so getting their consent eases the adoption; it doesn't complicate matters.
Andrews wouldn't have been hard for Genesis to find. Erdley knew his phone number and address. But the agency didn't contact him until several weeks after it placed the baby with the Matthewses. And then, it wasn't a phone call or a visit but a letter containing adoption consent papers that Genesis wanted him to sign, and medical history forms it wanted him to fill out.
Ronald Koerner, a Pittsburgh lawyer who represents Genesis, said: "I don't feel we have to defend what we did here. I think we did everything properly."
He and Carole McMahon, director of Genesis, offered different accounts of contacts with the Andrews family. McMahon declined comment other than to say of Andrews, "He was contacted and gave verbal consent."
Andrews denies that happened, and in four years of court battling, it was never offered as evidence. "I am sure they would have thrown that up in our faces in court right away," his mother, Brenda Andrews, said.
Brenda Andrews says she never spoke to anyone from Genesis -- although Koerner claims the group did in fact talk to her -- and if she had, she would have adamantly objected to placing her first grandchild for adoption.
Besides, since Alphonso Andrews was an adult, it was his consent that was required, not his mother's.
Koerner said the agency assumed Alphonso Andrews approved of the adoption because the agency gave Erdley medical papers for him to fill out, and she brought them back completed. "That means to me he had no objections," Koerner said.
Andrews says he never saw those documents.
In any case, why would Genesis mail him medical history forms to fill out after the child's birth if Erdley had already delivered those completed forms to them.
Erdley could clear this up, but she and her parents have declined to comment.
In loco parentis
Andrews figured that if Erdley didn't want the baby, he would automatically get her. It wasn't as if she belonged to only one parent. "She is my child, too," he said.
But when Genesis gave her to the Matthewses, he found himself seeking a court order to get his own child. The Matthewses could have given him the baby then, and, according to Amrhein, had good reason to do so.
He said most adoptive couples don't have a strong legal basis to keep a child from a balking parent, mother or father. They are not, he said, likely to win a protracted court contest. And it will cost them financially and emotionally.
Some prospective adoptive parents choose the fight anyway, sometimes on the advice of the adoption agency.
"Some fathers perceive that agencies urge adoptive parents to fight them and wear them down so that, eventually, they will run out of interest, time and money," Freundlich said.
The Matthewses chose to fight.
They watched as Baby M learned to smile, coo and roll over in her first six months, while the Cambria County court did nothing with Andrews' request for custody. Andrews missed it all.
On July 9, 1996, Cambria County Common Pleas Judge Timothy P. Creany conducted a hearing to determine whether the Matthewses had the right to contest Andrews' request for the child, and, if they did, who should get custody.
State law provides only a few ways to challenge custody. It may be contested by either parent in a divorce. A child welfare agency may seize custody from parents who abuse or neglect children. And a court may transfer custody from a parent to someone who has gained "in loco parentis" status. That's obtained by people who serve as substitute parents for children, housing them, clothing them, feeding them, loving them.
The Matthewses told Creany that they had the right to seek custody of Baby M because they were serving "in loco parentis" to her. By the July hearing, they'd been substitute parents for six months.
Andrews' lawyers argued appeals courts had said substitute parent status may not be gained in defiance of birth parents' desires for their children. Because Andrews had never given consent for the Matthewses to have his baby, he said, they were acting against his wishes.
Creany decided, however, that the Matthewses got "in loco parentis" from Erdley. He said consent from either parent was enough to grant the status.
That decision created a custody contest between Andrews and the Matthewses, one in which Andrews was forced to explain why he would be a better parent for his own child than the prospective adoptive couple.
This is a competition in which the birth parent may be fatally handicapped on economics alone, Mihalich says. The parent, often a young single person, will have difficulty affording any attorney, let alone one of the caliber hired by older, richer prospective adoptive parents. And, he said, it will be hard for the young parent, often still in school, to contend that he or she will be able to provide as well for the child as the prospective adoptive parents.
"It puts birth parents at a double disadvantage. There is no doubt about it," Mihalich said.
'That is my child'
It was a disadvantage Andrews could not overcome, even though judges must give special weight to blood ties.
At the time, Andrews was a 19-year-old planning to attend Penn State University and play basketball in the fall, a sport that would take weekend practice and playing time. His only income was from odd jobs. He lived with his mother, a brother and two sisters in a three-bedroom rented house. His parents, Brenda and Calvin Andrews, were separated.
By contrast, the Matthewses were much older and much more settled. Darrell Matthews had a master's degree in education and had worked as an insurance claims investigator for 17 years. Cindy Matthews had an associate's degree in advertising art and had worked in a day care center. They owned their home.
When Creany compared the two, he chose the Matthewses. He said that because Andrews planned to attend college, he would rarely be around to raise his daughter, so the child would be shuttled between his mother, who worked at Wal-Mart, and his father, who drove a truck for the Red Cross.
Darrell and Cindy Matthews, however, would provide secure, continuous care for the child, the judge wrote. "While the court does not weigh this factor as heavily, it is apparent that Darrell and Cindy are better able to provide for the financial needs of [Baby M]," he said.
Creany didn't hand down the decision until November, nine months after Andrews sought it. He was in college by then, but became emotionally and physically ill after the ruling. He suffered heart problems and underwent catheterization. He dropped out of school for a year.
His mother was incredulous.
"I know we are poor. I admit it. But I can't believe someone can take your child away from you when you want her."
Andrews agreed.
"I knew we didn't have money like them. If it was like that, I knew I would lose. But it shouldn't be money as long as she has food and clothes and a roof over her head. That is my child.
"They said it was for the best interest of the child. But that is not their child. It is mine. I can't help it that they are unable to have children. That doesn't give them the right to take mine," said Andrews, who is now studying social work at Slippery Rock University.
In such a complicated, contentious legal matter, Creany knew there was a chance his decision would be overturned. So he gave the Matthewses custody but also gave Andrews visits. That way, if an appeals court reversed him, the child would not be moved to the house of a stranger. "I took the precaution," the judge said.
'The proper authority'
Andrews traveled to Johnstown from the Schuylkill Campus of Penn State every other weekend to see his daughter. His transfer to Slippery Rock eased the visits.
He taught her to call him Daddy, but sometimes she calls him "Fonzi" as everybody else does. Occasionally, he set up clandestine meetings with Erdley so that she could see her baby as well.
His attorney, Schellhammer, appealed Creany's decision.
Superior Court, in a split decision, agreed with Creany. The majority said that when a mother hands a child to an adoptive couple, she also gives them the right to compete with the father for custody.
Then Schellhammer appealed to the state Supreme Court.
Also in a split decision, it ruled last November in Andrews' favor. Unlike Superior Court, it said that because the father objected to his child's placement, the prospective adoptive couple could not obtain "in loco parentis" standing to attempt to keep his child from him.
"Without the natural father's consent, I find that neither Genesis nor Darrell and Cindy [Matthews] had the proper authority to assume the role of parent. The stakes are simply too high and the rights of the nonconsenting parent too substantial to allow one parent to confer 'in loco parentis' status on a third party," Justice Russell Nigro wrote in a concurring opinion.
Two days a month
The Supreme Court sent the case back to Creany to decide custody. The decision meant the Matthewses couldn't protest removal of Baby M from their home.
Last month, Creany held a hearing at which he allowed Erdley to be represented, despite her having signed a consent for termination of her parental rights. He also allowed the Matthewses' attorney to sit at counsel table and ask questions, as if they were still participants in the case. At their request, he appointed an attorney for Baby M.
He said he wouldn't decide on custody, which he could give to Andrews or Erdley, until a psychologist advised him on how to best ease Baby M from the Matthews' care. That has created a new problem for Andrews.
Last week, Creany hired a Pittsburgh psychologist and ordered the Matthewses, Erdley and Andrews to split the $3,500 fee, which must be paid in advance. How Andrews, a college junior, will come up with his $1,166 share is a mystery.
Also at the hearing, Erdley asked for visits, and Creany gave them to her by cutting Andrews' time with his daughter in half.
Now, after seeking his child for four years and winning in the Supreme Court, Andrews gets two days a month with her instead of four.
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