Parents Seek Reforms in Adoption Law : Custody: A San Juan Capistrano couple who lost their adoptive child lead the charge to end the legal limbo for such children.

SAN JUAN CAPISTRANO —  Saying California adoption laws are confusing, inhumane and insensitive to children, a coalition of adoptive parents has launched a statewide campaign for reform.

Leading the charge are Bridget and Andreas Wikidal, a San Juan Capistrano couple whose adopted child was returned to his birth mother when he was 18 months old. Their proposed bill, introduced March 8 by state Sen. Marian Bergeson (R-Newport Beach), would give birth mothers three months after their babies are born to decide whether to give them up for adoption, instead of the customary six months.

The bill would also require adoptive parents to pay for counseling to help the mother make an informed decision. But if the birth mother changed her mind after three months, she would then be required to show that it would be in the best interest of the child to be returned to her.

“If she wants to keep her baby, I want her to keep her baby. No one is out there trying to take these babies from these” birth mothers, Bridget Wikidal said. “But you have to draw the line somewhere. At some point, the rights of the child have to come first.”

Under state law, children in contested adoption cases can end up in “legal limbo” for months and even years before being settled in a home, with wrenching consequences for all concerned, Wikidal said.

The courts have ruled that if a birth mother signs a form refusing to consent to adoption within the first six months after birth, neither the adoptive parents nor a judge can deny her the child--even if she leaves the child in the adoptive home for months afterward.

Once the birth mother asks for the child, “the court may not consider whether returning the child to the birth mother will be in the minor’s best interests,” the 4th District Court of Appeal in Santa Ana has ruled.

The state agency responsible for adoption policy hasn’t taken a position on the Bergeson bill, but acknowledges that some changes may be in order.

“The general idea of having independent adoption be as rapid, as certain, as predictable and as fair as possible is a good idea,” said Jim Brown, chief of the adoptions branch of the Department of Social Services in Sacramento. “I think there’s room for improvement of the law in this area.”

However, Brown said that cases such as the Wikidals’, while “tragic,” are extremely rare. California had 3,313 independent adoptions in fiscal 1990, but details are available in only 2,507, Brown said.

Out of the latter, only 4% of the birth mothers changed their minds about giving up their babies--and in only 21 cases did the adoptive parents fight the birth mother for custody, Brown said.

Those few cases, however, have been traumatic enough to persuade adoptive parents that legislative change is essential. Prompting the reform are three recent cases in which the 4th District Court of Appeal ruled that adoptive parents had improperly thwarted the birth parents’ rights, and ordered the children--including 18-month-old Erik Wikidal--returned.

The controversial rulings are known in adoption circles as the “BMW” decisions, after the babies’ initials.

The Baby Boy B case involved a mother whose four children had been placed in foster homes after allegations that the oldest child had been sexually abused by her stepfather. The mother surrendered her fifth child to an Orange County couple for adoption, but changed her mind within a month.

The adoptive parents, who were aware of the allegations of abuse, claimed that the birth mother vacillated over whether she indeed wanted the child back; the birth mother claimed her attempts to reclaim him had been thwarted and stalled.

The appeals court said it sympathized with the adoptive parents, but ruled that the child should have been returned to its mother. By the time the appeals court issued its decision in May, 1990, Baby Boy B was 17 months old.

Baby Boy B’s mother, Drucilla B., has since been declared unfit, and the child is back in the foster-care system while the courts decide whether the mother can benefit from treatment and regain the child, according to Harold F. La Flamme, the baby’s court-appointed lawyer.

Though the mother is allowed to visit the child, “as far as I know, Drucilla B. has never clamped eyes on Baby Boy B,” La Flamme said.

Likewise, the other two babies, Baby Boy M and Timothy W., are not living with their birth mothers, La Flamme said. One has been returned to foster care, and the other is living with a relative, he said.

Such children are at severe risk of emotional problems later in life, said Christian R. Van Deusen, the attorney who represented the unsuccessful adoptive parents in all three cases.

“In the most vulnerable part of their lives, these kids are being shuffled from pillar to post without ever having a chance to form an attachment,” Van Deusen said.

In the case of Erik Wikidal, known as Baby Boy M, his unwed teen-age birth parents told the Department of Social Services that they wanted to reclaim the baby, but the Wikidals had no idea until a few days before the six months elapsed, Bridget Wikidal said.

Superior Court Judge Robert J. Polis ultimately agreed to terminate the birth mother’s rights on the grounds that she had abandoned him. Although the baby’s lawyer said it would be in the child’s best interests to stay with the Wikidals, the appeals court said the decision was not Polis’ to make.

In a scathing opinion, the court said the Wikidals had created their own misery by refusing to turn over the child as soon as they were informed that the birth mother had asked for him.

“The sole reason the child remained away from his birth mother for more than six months was that the prospective adoptive parents refused to honor her change of heart concerning the adoption,” Justice Thomas F. Crosby Jr. wrote.

By this time the teen-age parents had married. Erik’s birth mother was nine months pregnant with her second child when the Wikidals tearfully handed over Erik last summer.

Last Sunday, Bridget Wikidal said, the couple was allowed to visit with Erik for the first time. “He recognized us and it was a real special time,” she said.

She said she bears Erik’s birth parents no ill will, but continues to grieve. “I have to live with losing my child forever,” she said.

During an appellate hearing in the Baby Boy M case, the justices told the Wikidals in no uncertain terms that they had flouted the law, and that if they disagreed with the adoption laws, they should go to Sacramento and change it, Bridget Wikidal said. “And that’s the way we’re trying to deal with it,” she said.

After informal meetings with other adoptive parents sponsored by Van Deusen’s office, they organized Families for Adoption Reform and Children’s Rights, which now represents 200 families, Bridget Wikidal said.

They approached Bergeson, who said she was moved by their stories and agreed that there were “glitches” in the adoption laws.

“Both natural parents and adoptive parents want some assurance,” Bergeson said. “Our bottom line is that the best interest of the child should supersede all other issues.”

Among other things, the bill aims to clarify a major myth about adoption: that California law gives birth mothers only six months to change their minds.

In fact, the law says that if a birth mother decides not to relinquish the child but leaves the child in an adoptive home for more than six months after birth, the adoptive parents may file a petition to terminate her parental rights. The birth mother, however, may contest the petition if she wishes, in which case the resulting court battle may drag on for months.

Bergeson’s bill, SB 1148, would introduce a three-month deadline, by which time the birth mother would be required to either relinquish the baby or inform the court that she did not intend to consent to an adoption. If the birth parents did not act within 90 days, they would be deemed to have consented to the adoption.

It would also require that birth mothers be given at least three paid counseling sessions and handed a document written in lay terms explaining their legal rights--including which court to inform if they want their child back, Bridget Wikidal said.

If the birth mother requested the child back within the first 90 days, the court would schedule a hearing within 10 days and the child would be returned, she said.

That provision drew criticism from Kate Burke, president of the American Adoption Congress, who said birth parents should not have to go to court to get their babies back.

“I think it’s a form of intimidation,” Burke said. “You don’t become a birth parent because you are wealthy, educated and of a certain age.

“You’ve got poor women here who thought they had to give up their child, and can’t (go through with the adoption), and don’t want to. . . . The potential . . . of being torn up by a well-paid attorney who is going to try to make her look unfit is very large.”

Burke also called for a requirement that adoptive parents pay for a lawyer for the birth mother, more careful scrutiny of the adoptive home, and a six-month waiting period.

La Flamme, one of Orange County’s leading child advocates, said a decision on adoption should be made far earlier than it often is now.

“I’d personally like to see it tightened down in a week or 10 days,” La Flamme said. “The longer the kid is away from the mother, the less likely it is that she and the kid are going to attach properly. I’ve seen that problem in literally thousands of cases.”