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A decision on who will raise "Baby Emma" may hinge on whether her father acted quickly enough to protect his rights in his home state, what deference Utah gives other state's courts and interpretation of a federal kidnapping law.
The Utah Supreme Court focused on those issues Thursday as it heard arguments in John Wyatt's bid to gain custody of his daughter, born Feb. 10, 2009, in Virginia and placed with a Utah couple days later through A Act of Love adoption agency.
Wyatt has said he opposed the adoption from the start and hoped to raise the child, either alone or with his then-girlfriend, Emily Colleen Fahland. But Larry Jenkins, the agency's attorney, said Wyatt acted too late in both Virginia and Utah to protect any legal claim to the child.
Joshua Peterman, Wyatt's attorney, said a time-stamped receipt shows Wyatt filed visitation and custody petitions on Feb. 18 five days before Thomas and Chandra Zarembinski, the adoptive parents, initiated an adoption proceeding in Utah.
Peterman characterized the case as a custody dispute that falls under provisions of the federal Parental Kidnapping Prevention Act. He said Wyatt did everything required to protect his parental rights under Virginia law, as noted by the judge there who granted Wyatt custody of Emma.
Justice Thomas Lee called it a "heroic proposition" to argue that a pending paternity decision in another state deprives Utah courts from proceeding with an adoption. But Peterman said under the federal law, that was the case.
Wyatt also never received proper notice of Fahland's intention to proceed with an adoption, Peterman said. Wyatt has said Fahland mentioned receiving information about adoption but subsequently reassured him they would jointly make a decision about adoption.
Jenkins told justices that the exact date Wyatt launched his paternity action doesn't matter; he didn't comply with other legal requirements in either state. Chief Justice Christine Durham called that a "peculiar" line of reasoning, particularly since a Virginia court was "apparently satisfied" that Wyatt had acted appropriately and timely.
Jenkins said Wyatt has never disputed that Fahland informed him days before the birth of her intention to place the child for adoption, but he still failed to take any action in Utah. He also argued the federal kidnapping statute does not apply to adoption proceedings. But Justice Jill Parrish noted other courts have found it did.
The Zarembinskis did not attend the hearing, but A Act of Love released a statement afterward on their behalf. The statement said it was unfortunate that "private family matters" were being aired in the media and strongly refuted allegations the couple "kidnapped" the child.
"The adoptive parents have been the victims of Mr. Wyatt's belated challenge to the adoption of their child, who is now very much a part of their family," the statement said. "The birth mother made the difficult and courageous choice to place the child with the adoptive parents because she believed that the child deserved a loving, stable, two-parent home."
It would be "extremely detrimental" now, the statement said, to remove the child from her home. "Their primary concern has and always will be the best interests of the child."
After the hearing, Jenkins said the legal battle was "pretty rough" on the Zarembinskis.
"There is always that fear [that they will lose], and I can tell you they are struggling with it," he said.
He pointed out the Utah Supreme Court found in a previous ruling that a birth mother who told a biological father she was "in Utah" had given sufficient notice. Utah statutes "assumes a birth mother should have that first choice unless a father steps up and does what he needs to do," Jenkins said.
But Wyatt said the Zarembinskis "stole a man's child, who wanted his child."
"I pray to God that they make the right decision and give my daughter back," said Wyatt, who made his first trip to Utah to attend Thursday's hearing.
Both Peterman and Jenkins said they expect it will likely be months before the court issues a ruling in the case.
A show of support
For one person who listened to the "Baby Emma" arguments before the Utah Supreme Court Thursday, it was "deja vu."
Last year, Tanya O'Dea's husband, Cody, lost his bid to oppose a former girlfriend's decision to place their child for adoption. She traveled to Utah from Wyoming on Thursday to support John Wyatt and his mother, Jeri.
Cody O'Dea filed paternity papers in Wyoming and Montana, but his girlfriend then came to Utah to give birth. The Utah Supreme Court, in a 3-2 decision, found Cody did not act soon enough here to protect his rights and upheld the adoption.
Tanya O'Dea said her husband remains devastated.
"He lost his daughter. He's never seen a picture of her, he doesn't know where she's at, he didn't even know that it was a girl until six months later," Tanya O'Dea said.
"When it is going to stop?" she asked after the hearing. "What gives [adoptive parents] more rights to these children than their own biological parents?"