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Court Refuses to Rule in Adoption Case : Law: Illinois hearing will now decide if 'Baby Richard' must be given to his biological parents. The 3-year-old has lived only with adoptive parents.

November 08, 1994|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — The Supreme Court, refusing to intervene in a highly emotional dispute over the adoption of a 3-year-old Illinois boy, on Monday let stand a state court ruling that may send the child to live with the biological parents he does not know.

Lawyers for both sets of parents said that the high court's action clears the way for another hearing to determine who finally will get custody of the boy known as "Baby Richard."

An aide to Illinois Gov. Jim Edgar said that, because of a newly enacted state law, a judge will consider what is in the "best interest of the child."

The case has renewed a national debate over the adequacy of state adoption laws in an era when more than 1.2 million children are born each year to unmarried women.

In the past, the high court has said that fathers, whether married or not, have a constitutional right to act as parents, but state laws also say that babies can be put up for adoption by the mother if the father does not step forward within a certain period, such as 30 days after the child's birth.

Baby Richard's case illustrates the trouble that can arise if the mother hides the news of the baby's birth from the biological father.

In 1989, Daniella Janikova moved to Chicago from her native Czechoslovakia and went to work at a restaurant managed by another Czech immigrant, Otakar Kirchner. A year later, the 24-year-old woman was living in Kirchner's apartment and had become pregnant.

But shortly before the baby's birth, Kirchner returned to Czechoslovakia to care for his sick grandmother. His aunt told Janikova that he had resumed a romantic relationship with a former girlfriend.

Angry, the young woman moved out and on March 16, 1991, gave birth to a boy. She told Kirchner that the baby had died. In fact, she put him up for adoption four days after his birth.

The adoptive couple, known in court papers as "Mr. and Mrs. Doe," were told only that the biological father was unknown. Kirchner continued to inquire about the child. By May, he learned the truth and contacted a lawyer to assert his parental rights.

But on June 15, 1991, a trial judge dismissed Kirchner's challenge to the Does' adoption because he had missed the 30-day deadline set in state law. In September, Kirchner and Janikova were married, and he renewed his legal effort to win custody of the boy.

Two years later, however, a state appeals court upheld the adoption on a 2-1 vote, citing the best interest of the child.

"Plainly, it would be contrary to the best interest of Richard to 'switch' parents at this state of his life," the mid-level appeals court said.

But on June 16 of this year, the state Supreme Court stunned the adoptive parents and set off a storm of controversy in Illinois by upsetting the adoption decree.

In a terse opinion, the state high court said that the natural father had from the very beginning "made various attempts to locate the child, all of which were either frustrated or blocked by the actions of the mother . . . and by the attorney for the adoptive parents."

When Kirchner came forward in May, 1991, the Does "should have relinquished the baby at that time. It was their decision to prolong this litigation."

*

Because the father's right was wrongly terminated, the state court vacated the adoption and ordered a custody hearing. In a parting shot, Illinois Supreme Court Justice James Heiple commented: "If the best interests of the child were a sufficient qualification to determine child custody, anyone with a superior income, intelligence, education, etc., might challenge and deprive parents of their right to their own children. The law is otherwise and was not complied with in this case."

A state lawyer representing the child, along with a lawyer for the Does, filed appeals to the Supreme Court, arguing that the state court decision will have a "disastrous impact" on Richard and "casts an ominous shadow over the security of adoptive families."

They urged the justices to rewrite the constitutional rules so that a child's welfare would take precedence over the parental rights of a natural father.

But after studying the appeals for five weeks, the justices dismissed them on Monday without comment (Baby Richard vs. Kirchner, 94-236). Presumably they did so because the state court's ruling ultimately turned on its interpretation of state law, an issue that is off limits for the Supreme Court.

Nonetheless, the legal battle is not over. In reaction to the state court ruling, Illinois lawmakers enacted a law that requires a custody hearing to focus on the child's welfare when an adoption is revoked.

"We wanted to assure the best interest of the child would be considered," said James S. Montana, counsel to the governor.

Lawyers for Kirchner dispute whether the new law applies to their case, but they agreed that the child's welfare is paramount.

"Hopefully, both sides will sit and talk about their appropriate relationship with the child," said Northwestern University law professor Thomas Geraghty, who represented Kirchner. "We certainly want to avoid a scene like when Baby Jessica was taken away," he said, referring to an earlier dispute over custody of a child.

In other actions, the court:

* Refused for now to review a ruling that requires a public television station to have a "compelling" reason for excluding a fringe candidate from a public debate. Though the case (Arkansas Educational Television vs. Forbes, 94-490), raises a broad First Amendment issue, it has not been tried yet.

* Refused to hear an appeal from a Seattle couple who were convicted of sexually abusing their child based entirely on "hearsay" testimony from a day care worker (Swan vs. Peterson, 93-1633).

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