Utah couple embroiled in adoption scandal say Samoan attorneys can exonerate them

Date: 
2007-12-28

Pamela Manson
The Salt Lake Tribune

A Utah couple accused in an international adoption scandal say four of Samoa's most prestigious attorneys can help prove their innocence.

But the lawyers will not travel to the United States to testify because they fear being charged themselves, according to Scott and Karen Banks of Wellsville.

So the couple is asking a federal judge to allow future jurors to read four sworn affidavits from the men describing how Samoan birth parents were repeatedly told they were giving up legal rights to their children and should not expect to see them again.

The affidavits take aim at one of the prosecution's key claims: that parents were duped into placing their children for adoption in America.

"Not only are the affidavits highly probative, they may be the only truly probative evidence available to the defense on how the formal relinquishments [of the children] were obtained," defense lawyer Rebecca Hyde wrote.

"The only individuals typically present during the birth parent interviews were the attorney and the birth parents," she said.

Hyde, who represents Karen Banks, filed her request earlier this month with U.S. District Judge David Sam. Attorneys for other defendants, including her husband, Scott Banks, have joined in the motion.

A spokeswoman for the U.S. Attorney's Office said Friday that prosecutors are reviewing the defense request and will respond later.

A federal grand jury issued a 135-count indictment in February charging the Bankses, their Focus on Children adoption agency and five employees with fraud and immigration violations. More than 80 children were illegally taken from their families by conspirators working through the agency, the indictment claims.
   
Letter of the law. While the case was under investigation, Focus on Children asked its Samoan attorneys for affidavits describing their work for the agency, Hyde's filing said.

The affidavits say the three-step relinquishment process required under Samoan law was followed.
- Birth parents first meet with a licensed attorney, who explains their rights and what they are giving up. An affidavit, which by law is written in English, is verbally translated into Samoan.
- The attorney sends the affidavit to a second attorney for review. The second attorney again explains to the birth parents their rights and the consequences of relinquishment. When that attorney is satisfied the parents understand, he or she obtains their signatures.
- That attorney submits the Affidavit of Natural Parents to a court, along with affidavits from a prospective adoptive parent. A judge does whatever further investigation deemed necessary, which can include interviews with the birth parents, then signs the adoption order.

The four attorneys hired by FOC include Ming Leung Wai, Samoa's current Attorney General, and his uncle, Semi Leung Wai; they were formerly in private practice together.

Patrick Fepulea'i, who generally handled the first required meetings with birth parents, worked in the Attorney General's office before entering private practice. Ameperosa Roma also has worked as a government attorney and now practices law with Fepulea'i.

Prosecutors have openly accused Fepulea'i of being a co-conspirator and have indicated their intention to indict him, Hyde wrote. That threat, she contends, applies to the other attorneys, making them unwilling to come to the United States.
   
Defining orphans. In another request, the defendants are asking Judge Sam to rule on whether contact between a child and birth parents after the adoption process begins affects the child's legal status as an orphan.

Hyde argues such children are still considered legally abandoned and orphans.

"The abandonment regulation does not give any indication that an adoption agency is wrong to permit the natural parents to have contact with their children before or after the forsaking of parental rights," she said.

Several Samoan birth parents told The Salt Lake Tribune in interviews last summer that their children returned home for days or weeks at a time during the adoption process. Prosecutors cite the extended visits as evidence that the children were not legal orphans.

The Bankses also are questioning the work of an FBI agent who interviewed parents, contending some adoptive families now say he misrepresented their statements in reports. They want the judge to review his personnel file for similar complaints.

But prosecutors argue the agent has confirmed with parents that his reports are "fundamentally correct," and point out the parents themselves - not the agent - would testify at trial.

- SHEILA McCANN contributed to this report

The case against Focus on Children Utah adoption agency Focus on Children owners Scott and Karen Banks and five employees are accused of conspiring to arrange adoptions that violated U.S. immigration laws. Prosecutors allege the scheme included lying to both Samoan birth parents and American adoptive parents.

Samoan parents say relatives or friends pushed a program - often described as affiliated with the LDS Church - that would educate children in the United States and return them at age 18.

U.S. immigration laws required the children to be orphans, defined as abandoned by both parents or left with one parent who cannot provide care.

The defendants have pleaded not guilty and are awaiting trial.

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