Toddler loses in adoption tug of war: Rupert Cornwell reports from Washington on the end of a legal battle which has gripped America's heart

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The Independent Online
JUST conceivably, the law, in its unfeeling complexity, could provide one more wrenching coup de theatre. But beyond most reasonable doubt, a Supreme Court ruling by Justice John Paul Stevens this week has written the last word in an adoption tug of war that has gripped all America. By Monday, a 2 1/2 -year girl now called Jessica DeBoer must be returned to her biological parents whom a month ago she never knew existed.

It is a story that started on 8 February 1991, when an unmarried Iowa factory worker named Cara Clausen gave birth to a daughter. Within a month, a legal battle had started that would span two states and two families of utterly different backgrounds. It would generate countless newspaper and television features, and a passionate national debate on the whole US practice of adoption and childrens' rights.

At first Cara waived her parental rights. When word reached Jan and Roberta DeBoer, a Michigan couple who could have no children of their own, they lost no time. They obtained releases from both Cara and the father she had named on the birth certificate, took the little girl into their home, and embarked on the formal adoption process. Within six months the baby would legally be theirs.

But within days it began to go wrong. Cara told her ex-boyfriend Dan Schmidt, Jessica's real father, what had happened. First the mother, and then Dan, had second thoughts. In March 1991 they began legal proceedings to regain their daughter, and in December an Iowa court ordered the DeBoers to return the child.

At that point, the saga might have ended. But the DeBoers chose to fight on. Dan Schmidt, it emerged, had already fathered two children by different mothers but shown no interest. Was he, they argued, fit to be Jessica's father? Their appeals meandered through the legal systems first of Iowa and then Michigan, with little success. But all the while they kept custody of Jessica, creating the only home she knows. That home is about to be torn asunder.

So who is right and who is wrong? Public opinion, driven by pictures of a blissfully happy little girl playing with the model middle-class couple she believes to be her real parents, overwhelmingly sides with the DeBoers. For most of America, Cara and Dan Schmidt are the feckless destroyers of other peoples' lives. But the truth is far less clear-cut.

For one thing, Cara and Dan have now married. Then there is the simple essence of Justice Stevens' ruling. 'Neither Iowa law, Michigan law nor federal law,' he wrote, 'authorises unrelated persons to retain custody of a child whose natural parents have not been found to be unfit simply because they may be better able to provide for her future and her education.' Had the DeBoers and their lawyers acknowledged that reality at the outset, much of the subsequent heartbreak could have been avoided.

Like it or not, many experts have noted, US law almost invariably gives priority to the claims of the birth parents. Once Cara had filed her first claim to recover her daughter on 6 March 1991 - less than a month after the birth - the DeBoers should have read the writing on the wall. Instead, says one adoption specialist, 'they've managed to pervert the whole issue of a child's best interests'.

There is, of course, one easy target - an intricate legal system and the separate state and federal jurisdictions which allow endless appeal procedures. But few contested custody battles, pitting the sanctity of blood ties against the perceived happiness of a child, are not harrowing. And the Schmidt case is even more complicated. Unusually, it has partly hinged on the rights of a birth father, little- charted waters in American law.

For countless other adoptive parents here, the hugely publicised case has been a separate trauma. Every year 50,000 children are adopted. 'There are dozens of families out there, in the same situation as the DeBoers,' warns one adoption lawyer. Complicating matters is the shortage of children available through standard public agencies. With demand outstripping supply by 40 to one, many prospective parents choose private adoptions, permitted by Iowa and several other states. But as the DeBoers have heartrendingly discovered, legal pitfalls abound.

To all intents and purposes, their cause is now lost. Technically, the DeBoers could ask the whole Supreme Court to overrule Justice Stevens. But the chances of that are minute. Within five days, a little girl's entire life will be turned on its head. Her home, even her name will change. Jessica DeBoer will become Anna Lee Clausen Schmidt. And if she is very, very lucky, it will be as if the controversy surrounding the first 30 months of her life had never been.