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Experts Praise Jury for Seeing Unwed Dad's Side

December 06, 1995|JON D. MARKMAN | TIMES STAFF WRITER

Child welfare and fathers' rights advocates on Tuesday hailed a West Virginia jury's decision to punish a woman and her attorney who conspired to give up her newborn child for adoption against the father's wishes.

Calling it a landmark decision in support of unwed fathers, experts around the country said it is the first time that a jury has penalized a woman and her advisors for deliberately thwarting a man's desire to obtain custody of his child.

"This is justice at last," said John R. Ryan, president of the National Organization for Birthfathers and Adoption Reform in Florida.

The experts said the ruling bolsters the hopes of other unwed fathers who are fighting to have a say when the mother of their child is making adoption plans.

The jury awarded the father, North Carolina physician John W. Kessel, $5 million in punitive damages from the lawyer alone, and $2.85 million more in compensatory and punitive damages from the woman, her parents and a brother.

Kessel's attorney said jury members singled out the Beverly Hills-based attorney, David Keene Leavitt, for the greatest penalty because they believed that he masterminded the conspiracy to defraud the father.

Leavitt was retained by Kessel's former fiancee, Anne G. Conaty, in early 1991 after she had become pregnant unexpectedly and decided to give up the baby for adoption. Kessel opposed her plan, and sued to establish his right to obtain custody of the child.

According to testimony in the trial, Leavitt and Conaty's parents helped the 30-year-old woman hide from Kessel by skipping from state to state during her pregnancy; she then gave birth under an assumed name in Los Angeles.

Ryan said he has tracked dozens of similar instances in which unwed fathers have been "traumatized" by Leavitt. He said few other men have had the money to investigate and litigate their cases.

Kessel told the jury he spent $117,000 on lawyers and investigators during the 10 months it took to track down his ex-fiancee in Los Angeles and the child in Canada.

"I think a $5-million penalty is a drop in the bucket compared to emotional and financial damage Leavitt has done to other fathers and their families," Ryan said. "Adoptions are great if they're done right, but if they're done wrong it's nothing more than legal kidnapping."

Child-welfare experts applauded Kessel's strategic decision to seek monetary damages against the mother and her lawyer instead of the emotionally wrenching return of his son.

"When the adults are the ones who have to pay, then the system will change," said Marci Axness, an adoption counselor who lives in Calabasas.

Kessel's son, now 4, lives with his adoptive parents, Kenneth and Patricia Holmstrom, in Edmonton, Alberta. The physician sought to be named joint guardian when he found the child six months after he was adopted by the Holmstroms, but was unsuccessful.

Kessel asserted in his suit that Leavitt and the Conatys chose an Albertan couple for the adoption because that province affords no parental rights to an unwed father unless he has lived with the mother for 300 days before birth.

Kate Burke, executive director of the California Adoption Alliance, a public-policy organization devoted to children's rights, said the jury verdict indicates that attorneys and legislators underestimate the public's respect for fathers. "The amount of money they granted shows how important they think fathers' rights are," Burke said.

Indeed, the $7.85-million award was the largest in the 130-year history of Huntington, W. Va., the mother's hometown. A friend of the mother's family, attorney David Lockwood, said that the prominent Conaty clan has been "devastated" by the award.

"They don't feel they did anything wrong," Lockwood said. "It's apparent that the men on the jury couldn't help but put themselves in the position of the father, and made an emotional decision." He said that the Conatys and Leavitt will appeal. The process could take years.

At least one other Beverly Hills adoption attorney sided with Leavitt. Declaring that he would not have taken on a case with an uncooperative father because of the potential danger to the stability of the adoption, David Radis said "the lawyer thought he was just doing his job."

"Mr. Leavitt tried to help a young lady who had an unintentional pregnancy, and didn't want to terminate," Radis said. "Had she terminated the pregnancy, she wouldn't have needed the father's permission. Because she chose life and adoption, she found herself face to face with a legal problem. She hired an expert in this field who practiced law to the best of his ability to assist her with her needs."

Radis said that West Virginia and California law do not clearly prohibit Leavitt's actions.

"I'm not sure that what Mr. Leavitt did was as fraudulent as others may think," Radis said. "It was not in any way a violation of state or federal law, only something that this particular jury thought deprived one birth father of his rights."

However, Reuben Pannor, a leading adoption researcher and author of the seminal works "The Unmarried Father" and "The Adoption Triangle," finds Radis' view simplistic.

"The father needs to be a part of the decision-making process: It's important to the mother even if she doesn't realize it at the time, and it's extremely important to the child," Pannor said.

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