I HAVE not written about the Jessica DeBoer case since the Michigan Supreme Court handed down its ruling against her a few weeks ago. I couldn't. I have practically been in mourning. But now, I've finally read the full 43-page opinion and the 51-page dissent. I've noted the failure of Supreme Court Justice John Paul Stevens to intervene in the case. And grief has turned to anger.
Jessica DeBoer, for those who have not seen recent issues of Time or People or who missed the numerous television treatments of her case, is the 2 1/2 -year-old Michigan girl who has been living with Jan and Roberta DeBoer -- the parents who would like to adopt her -- since a week after her birth.
The biological mother, Cara Clausen (now Schmidt), surrendered the child for adoption after birth. Unmarried, Ms. Clausen named the man she was dating at the time, Scott Seefeldt, as the father. Mr. Seefeldt signed away his paternal "rights," and the Iowa courts duly turned over custody of the baby to the DeBoers, who took her home to Michigan.
But then, Cara Clausen changed her mind about the adoption. She approached the man who was the true biological father, Dan Schmidt -- she had lied on her affidavit naming Mr. Seefeldt -- and told him of her dismay. Mr. Schmidt, who had known Cara was pregnant and who had fathered two previous children (whom he had failed to support) by two other women, attempted to overturn the adoption.
Courts in Iowa upheld Mr. Schmidt's parental "rights" and ordered that the child (by then almost 2) be turned over to him. The only issue, said the Iowa courts, is whether Dan Schmidt is the biological father. The "best interests of the child" could not be considered.
The DeBoers appealed to the courts of their own state. But the Michigan Supreme Court has now held that it lacks jurisdiction and ordered the DeBoers to comply with the Iowa order by next Monday and turn Jessie over to the Schmidts. (Dan and Cara have since married and borne another child.)
The Michigan court couches its barbaric decision in the language of duty. Two statutes, says the majority, the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, deny Michigan jurisdiction to modify the final order of a sister state. But as Judge Charles Levin writes in dissent, two other state supreme courts, New Jersey and West Virginia, when presented with nearly identical factual situations, interpreted those statutes in exactly the opposite fashion (i.e., giving custody to adoptive parents).
Moreover, Judge Levin argues, the statutes are quite clear in granting "continuing jurisdiction" to the "home state." The majority, "without any reference to or consideration of the statutory definitions," simply asserts that "Iowa was unquestionably the home state of the child."
Why unquestionably? Here's how the statute instructs courts to construe the term "home state": the "state in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months . . . " That state is unquestionably Michigan.
It's not hard to understand how the Michigan majority so readily concluded that Iowa was "unquestionably" this child's home state -- not when you read the anti-adoption bias that permeates the decision. "The relationship between natural parents and their children is fundamentally different than [sic] that between a child and non-parent custodians," said the court.
There you have it. You adoptive parents just aren't as good as the "real thing." Tell that to Jessica when she cries for her mommy and daddy, as she will if this decision stands.
Only Judge Levin could see that the ruling was legally and morally bankrupt. The person, Jessica DeBoer (who will be called Anna Schmidt next week in her new home), is being treated like a bale of hay. This decision is the Dred Scott case of 1993.
It falls now to the United States Supreme Court to take certiorari and settle the conflict over statutory interpretation that this case presents. While the justices are at it, they could also settle the question of whether courts can wrench children from happy homes merely because adults cannot distinguish between offspring and property.
Mona Charen is a syndicated columnist.