L. A. Times

Tuesday, February 23, 1999

High Court Rejects Appeal of Damages in Adoption Suit

Law: U.S. justices refuse to hear case in which lawyer, others were ordered to pay father of baby $7 million for facilitating adoption without his involvement.

By DAVID G. SAVAGE, Times Staff Writer
Los Angeles Times
WASHINGTON--The Supreme Court turned down the final appeal Monday of a Beverly Hills adoption lawyer who was hit with a $7-million judgment for helping an unwed West Virginia woman place her baby for adoption in Los Angeles without the involvement of the father.

The case has been hailed as a landmark victory for fathers' rights and a powerful warning for adoption lawyers and prospective adoptive parents.

In the past, the Supreme Court has said that a father's parental right cannot be terminated automatically if he comes forward to show an interest in his child.

The West Virginia courts took that principle one step further and ruled that a mother and her lawyer could be held liable if they conspired to conceal the baby's birth from the natural father.

The ruling has persuaded many adoption lawyers that they must, when possible, notify the natural fathers of children as soon as they can.

"Every child has two parents and both of them have to be given due process during the adoption," said Jane A. Gorman, an Orange County lawyer and president of the American Academy of Adoption Attorneys. "That is so as a matter of constitutional law and as a matter of good sense."

In California, once a natural father has been notified, he has 30 days to assert paternity, Gorman said. If the father does nothing, his rights can be terminated, she added.

But some pregnant women seek to avoid the father of their child, for reasons ranging from fear to disdain.

David Keene Leavitt, the Beverly Hills adoption lawyer, was known among his peers for helping mothers place their babies for adoption without the involvement of biological fathers.

In January 1991, Anne Conaty, a 30-year-old unmarried teacher in Huntington, W.Va., learned that she was pregnant. But she had broken up with her boyfriend, John W. Kessel. When he learned of the pregnancy, he suggested that she have an abortion.

She decided, however, to have the baby and put him up for adoption. She reached Leavitt through a toll-free telephone number, and she gave birth at Cedars-Sinai Hospital in Los Angeles on July 24, 1991. With her lawyer's help, she placed the boy with a couple from Alberta, Canada. Unlike in most states, the province's adoption laws did not require notification of the biological father.

Before the birth, Kessel had filed legal papers in West Virginia seeking to establish his paternity and he informed Conaty's relatives as well as Leavitt. But the lawyer refused to give Kessel information about the baby and cited the attorney-client privilege of confidentiality.

After the Canadian adoption was final, the father filed a lawsuit in Cabell County, W.Va., alleging that the mother and others had conspired to deny him his paternity rights. In December 1995, a jury awarded him $2.8 million in damages against Leavitt, Conaty, her parents and her brother and an additional $5 million in punitive damages against Leavitt.

Last July, the West Virginia Supreme Court upheld the jury verdict. On Monday, the U.S. Supreme Court refused to hear a further appeal in the case (Leavitt and Conaty vs. Kessel, 98-939).

"This was a runaway jury," said Leavitt, who has declared bankruptcy. "They created a brand-new tort [legal wrong]. And there are parts of the United States where, if you are from California or Beverly Hills, they sock you."

At his trial, Leavitt maintained that his actions were legal under California law. Although the parties to an adoption must seek to notify the natural father, a lawyer simply placing a child with others for eventual adoption has no such duty, he said.

But Leavitt said the outcome has changed his thinking. "I am a good deal more respectful when an unwed father is coming forward and making claims," he said.

Marvin Masters, a Charleston, W.Va., lawyer who represented Kessel, said he is relieved that the litigation is at an end, although he and his client have yet to collect any damages.

Kessel is a physician now living in North Carolina, where he is married and the father of triplets, the attorney said. Conaty returned to West Virginia, where she married and has a child. The child of Kessel and Conaty remains with his adoptive parents.

Masters said the West Virginia case "stands for the proposition you can now sue those persons who set out to deny a father his day in court." He noted that the Mississippi Supreme Court recently adopted a similar rule of liability.

But Gorman, the Orange County adoption expert, said the ruling sent shock waves through the ranks of lawyers who work in the field of adoptions.

"We fear it will have a chilling effect on interstate adoptions," she said. She noted that Leavitt had never been to West Virginia before the case and believed that he was following California law. "It is a scary proposition when you can be sued across state lines and all your assets put at risk."

The Supreme Court has been wary of intervening in adoptions and child custody battles since most of them turn on state law, not the U.S. Constitution.

Joan Hollinger, a family law expert at UC Berkeley, said adoption law is confusing because it differs from state to state and often is created by judges, not legislatures.

"I wish there were a clear set of rules. This is a world of tremendous ambiguity," said Hollinger, who has been urging states to accept a uniform code of laws in the area of adoptions.

Nonetheless, she said, most experts endorse the principle that a father should be given a chance to seek custody of his child.

"I hope the message of this case is that lawyers who are representing either group of parents have to be honest about the status of the birth father," she said. "If the lawyer knows the father wants to be involved, an effort should be made to notify him."

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