Rights of birth, adoptive parents collide in Baby Vanessa case

The custody feud has placed a national spotlight on those issues.

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By Mary McCarty, Staff Writer Updated 1:20 AM Thursday, July 29, 2010

Have the rights of birth parents gone too far? Or don’t they go far enough?

Those questions aren’t being decided this week in Montgomery County Juvenile Court, where the highly-publicized Baby Vanessa case will come before Judge Nick Kuntz today, July 29, and tomorrow.

But it is the subtext of the custody battle that has placed a national spotlight on the rights of birth parents versus adoptive parents.

Birth mother Andrea Conley selected Stacey Doss of California without the knowledge or consent of the birth father, Benjamin Mills Jr. of Dayton.

Adoption attorney Jerry Johnson said birth fathers have ample time to claim paternity, and recent Ohio Supreme Court rulings are creating more uncertainty . “In my opinion there’s all kinds of safeguards for the father,” said Johnson, who has practiced adoption law 31 years. “From the time of conception he had nine months to file a paternity action in Juvenile Court in Montgomery County, and that would have stopped any adoption proceeding. But Mr. Mills didn’t do that.”

Johnson said he has dealt with many similar cases in which the birth father was very late in asserting his rights. “So many times we have birth fathers who don’t do anything for the birth mother for nine months and then say, ‘Hey I’m the father here; it’s another notch on my belt, and I’m not going to give the child up,’ ” Johnson said.

He noted that the Ohio Supreme Court recently gave more rights to birth fathers, ruling that they can file a paternity suit within three months of the baby’s birth. “That’s just more uncertainty for the adoptive families,” he said.

The courts have the right to rule that the birth father’s consent isn’t necessary, Johnson said, if “he fails to pay support to the pregnant mother, take her to the doctor’s office, or do something to help her.”

Mills registered as the putative father within a short time after Vanessa’s birth, but Johnson said “that doesn’t stop the adoption proceedings; it only means he has to be notified.”

Kuntz must consider whether Mills is Baby Vanessa’s “presumed father” — not meaning DNA evidence, in this case, but whether he has taken on the role of the father during the pregnancy.

Elizabeth Gorman of Legal Aid of Western Ohio, Mills’ attorney, said her client has consistently fought to maintain his relationship with his daughter.

Stacey Doss, the California woman who has raised 2-year-old Vanessa and is attempting to adopt her, said Legal Aid shouldn’t have taken the case given Mills’ multiple convictions for domestic violence, including eight months in jail for assaulting Vanessa’s birth mother, Andrea Conley of Riverside.

Conley filed a petition for a domestic violence civil protection order against Mills on July 23, stating that he grabbed her near the RTA hub downtown.

“You should hitch your wagon to a really great father if you are fighting for birth father rights,” Doss said. “I believe in parental rights as well, and if you are a good father you should have no problem.”

Doss said she will fight for the rest of her life for changes in adoption law: “She was meant to be mine and as painful as it has been, I was the right person for this to happen to because maybe I can do something about it.”

Joe Kroll, the executive director of the North American Council on Adoptable Children, said adoptive parents should proceed with caution if a birth parent makes a custody claim. “Adoptive parents need to understand the complexity, if it looks like a legitimate challenge or if there was fraud involved.”

State law is often changed by cases such as this one, Kroll noted: “When you have something like this, it’s very helpful to have hard and fast rules in place. People will look at this and ask themselves, ‘What can we learn from this tragedy?’ ”

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Contact this reporter at (937) 225-2209 or mmccarty @DaytonDailyNews.com.

What happens in court this week?

Juvenile Court Judge Nick Kuntz must decide whether Ohio has jurisdiction in the case or whether the case should be sent back to California courts.

If he hears the case, he will decide whether Mills is the “presumed father” — not simply the biological father, but someone who has acted as a father during the mother’s pregnancy.

If Kuntz terminates Mills’ parental rights, the case goes back to California courts for a custody hearing. If Kuntz upholds Mills’ parental rights, a custody trial between Doss and Mills could be the next step.

— Greg Scott, legal director of Montgomery County Juvenile Court

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