Who will take care of Bethany?

Date: 2004-06-06

Foster parents, dead mother's sister battle for custody of adopted Chinese girl

JUDY EMERSON
Rockford Register Star

The odds were against Bethany and Esther Scudder from the beginning.

Abandoned at birth in China, they spent their first months in crowded orphanages along with other unwanted girls, all victims of the nation's one-child policy.

Official Chinese documents list hundreds of thousands of these girls as "found forsaken," which means their biological parents are unknown. Each year, Americans adopt about 5,000 of them.

Bethany and Esther were bright, beautiful and healthy. Orphanage officials identified them early as good candidates for adoption.

Bethany had been left on an orphanage doorstep in the Jiangxi province in southeastern China shortly after her birth on Nov. 3, 1996. She was almost 2 when Sandra Scudder, a Loves Park postal worker, went to China in 1998 to adopt her.

Esther was abandoned in the Hunan province, also in southern China, on July 29, 2000. Scudder adopted her in July 2001, a few days before the baby's first birthday.

Scudder, a devout Baptist who prayed for guidance on even minor life decisions, gave both girls biblical names.

She named Bethany for the place from which Jesus ascended to heaven after his resurrection. Esther's namesake in the Old Testament was a queen, a great beauty. In the Bible, Esther appealed to the king to save the lives of the Hebrews, her people.

The name was meaningful, fortuitous, Scudder told a friend, because Esther would be a link between people of two cultures.

By the summer of 2002, both girls were happy, healthy and well-adjusted to their new lives, say family and friends. Scudder was making plans to adopt a third Chinese baby.

But there would be no third trip to China.

Before summer's end, Esther was dead and Bethany was in foster care. An autopsy determined Esther had died of brain hemorrhaging due to blunt trauma to the head. She also had retinal hemorrhages consistent with shaken baby syndrome.

Authorities charged Scudder with first-degree murder and involuntary homicide, but she died of cancer in 2003 before she could go to trial.

Now, Bethany's fate hinges on a custody battle over who will raise her.

Scudder's sister wants her. So does the foster family that has cared for Bethany since August 2002. Both have filed adoption petitions.

Scudder's will names her sister, Dian Little of Inverness, Fla., as executor of the estate and guardian of Bethany, now 7. Little, an office manager, is divorced with a teenage daughter.

Little's attorney, Debra Schafer, declined to comment.

Through their attorney, Tom Nash, the foster parents also declined to say anything.

The Rockford Register Star is not using Bethany's picture or the foster parents' names to provide some measure of privacy to a child already caught up in a public case.

The issue of who will raise Bethany goes before Winnebago County Circuit Judge J. Todd Kennedy later this month.

Legal and emotional issues

The legal issues are complex, but probate law and child welfare codes give some guidance.

The emotional issues are heartbreaking. Experts in adoption and child development say there is no clear answer to what is right for Bethany or which path is more likely to lessen the long-term effects of so much trauma.

The legal issues include how much weight to give Scudder's wishes, as expressed in her will.

Sherri Rudy, a Rockford attorney specializing in wills, probate and elder law, said it comes down to a specific provision in the probate act that deals with children's care.

"The parent can 'nominate' someone to care for the child, but it's ultimately the court's discretion based on the best interest of the child," Rudy said.

The court will look at a list of factors in determining what is in Bethany's best interest and who should raise her.

Some of those factors, as spelled out in DCFS codes, include: the wishes of the child; the physical, mental and emotional needs of the child; and the child's need for stability and continuity of relationship with parent figures.

Experts in adoption and child psychiatry declined to comment specifically on Bethany's case but said her circumstances would create rocky emotional terrain for many children.

The first loss and rejection was abandonment in China. Children who are adopted from other countries also lose firsthand understanding of their birth cultures, said Cyndie Norton, director of Lifelink Adoption Services in Rockford.

The agency primarily handles international adoptions, including children from China. Scudder worked with another agency to adopt Bethany and Esther.

"Adoption is certainly a happy experience, but it's created through loss," Norton said. "It's naive of us to think that they're in a good home and love should be enough. There are issues, and there are critical times, such as adolescence, when those issues are likely to surface."

Emotional challenges of adopted children may be compounded by subsequent traumas such as divorce of parents, abuse, death and relocation.

"It's cumulative trauma," said forensic psychiatrist Diana Schetky, of Rockport, Maine. "There is also the whole issue of whether she holds herself responsible as the older sibling for what happened to her little sister."

Schetky interviewed teenager sniper Lee Boyd Malvo, who was convicted in the shootings that terrorized the Washington, D.C., area in 2002, and testified for the defense at his trial last year. She also testified at his sentencing hearing earlier this year.

Over the years, Schetky has treated many children who have experienced trauma, as Bethany has, and she has written several books about how the legal system deals with youngsters.

"Obviously the child needs permission to talk about this. If she saw something and she gets the message that she can't talk about it, it can be damaging," Schetky said.

Professionals who treat children who have experienced repeated losses and life changes are concerned about attachment issues, she said.

"Children with attachment disorder are like plants with shallow roots," Schetky said.

She said it is healthy for children to mourn after they lose people to whom they are strongly attached.

"If it was a strong attachment, they will have good memories of it," Schetky said. "Mourning allows them to re-experience the loss and move on and frees up energy to reattach."

Esther's death

Sandra Scudder's mother, 81-year-old Dorothy Turney, looks to be a typical middle-class American grandmother, a widow in reasonably good health who enjoys her retirement years.

Emotionally, she is reeling from grief over the deaths of a daughter and granddaughter, shock at the criminal charge and, now, disbelief that she might lose contact with Bethany.

She believes her daughter was incapable of hurting Esther and was wrongly accused.

"I believe she would have been exonerated if she had lived," Turney said of Scudder. "I loved the girls so much and Sandy was so happy. She was such a good mother."

It all started with Esther's death.

The telephone rang in Turney's apartment at Park Towers in Loves Park shortly after 7 p.m., June 13, 2000. It was Bethany, who was 5 then.

"She said, 'Grandma, can you come?' I knew something was wrong," Turney said. In the background, she heard her daughter tell Bethany to hang up the phone. Turney said she walked the six blocks to her daughter's house as quickly as she could.

When she arrived, the street in front of 705 Grand Avenue was clogged with emergency vehicles. Scudder and Bethany were sitting on the curb in front of their trim stucco and stone bungalow.

Turney said the paramedics were putting 22-month-old Esther into an ambulance.

Esther died at Rockford Memorial Hospital at 3:07 p.m., June 14, 2002.

Right away, police focused on Scudder, interviewing her at length and questioning her friends and acquaintances.

Turney said child welfare officials interviewed Bethany, who demonstrated on a doll what she had seen her mother do to Esther.

In an autopsy dated July 24, 2002, forensic pathologist Dr. L. W. Blum concluded: "This 22 1/2-month-old Oriental female infant died of malignant cerebral edema resulting from a closed head injury (blunt traumatic injuries). Changes noted in the eyes are consistent with shaken baby syndrome."

Scudder was charged with murder shortly after that. Bethany, who had stayed with her grandmother after the baby died, was placed in foster care.

Scudder's friends from the Loves Park Post Office remain certain the deeply religious woman could not have intentionally hurt Esther.

Lorrie Arnold, a co-worker for 15 years, had agreed to write a letter of recommendation to the Sunny Ridge Adoption Agency supporting her friend's application for a third Chinese child.

Arnold described Scudder as timid, patient and kind. None of her friends ever saw her strike the children.

"The police depicted her as a frustrated woman raising two kids by herself," Arnold said. "It couldn't be further from the truth."

With Scudder's death, the full story of what happened to Esther will never be known. Defense attorney Debra Schafer confirmed her defense at trial would have been that Esther's fatal injury occurred in an accidental fall at church.

"The only thing she cared about was getting Bethany back," Schafer said. "If they had said, 'You have to plead guilty to murder and stand on your head for 12 years to get Bethany back,' she would have done it."

The dismissed criminal case is only relevant now, Schafer said, as an explanation for why Bethany was in foster care when her mother died.

The will and Bethany's future

In June 2003, as Scudder's case was moving toward trial, she was diagnosed with ovarian cancer.

She had surgery and treatment, but it was too late. By late September, it was apparent Scudder was going to die, and Schafer drew up a deathbed will.

Turney said her daughter went without pain medication for two days to be of "sound mind and memory" on Sept. 26, 2003, when she signed the document.

The will put most of Scudder's estate into a trust for Bethany's care and education. Dian Little was named as executor and as Bethany's guardian.

Scudder died two weeks later.

Little, 51, is an office administrator for a physical therapy clinic in Inverness, Fla. She is divorced with one daughter, 16-year-old Carissa.

After her sister was charged with murder, Little went through foster care training and received her license in Florida because she wanted to care for Bethany while Scudder awaited trial. Yet, Little said, Lutheran Social Services wouldn't allow it.

Little said she was told Bethany needed to remain in Illinois so she could continue to have supervised visits with Scudder.

DCFS will not provide any information about Bethany. Lutheran Social Services of Illinois, the state-paid DCFS provider monitoring this case, will not confirm or deny Bethany is a client.

Why Bethany ended up in long-term foster care when there were in-family alternatives may never be known.

Neither Turney nor Little has any criminal past. Both passed background checks and other requirements for foster care licensing.

Turney said the Lutheran Services caseworker told her Bethany was being placed in long-term foster care to protect her from media exposure. Turney said she objected but soon realized she had no control over the situation.

She continued paying for Bethany's private school expenses while the child was in foster care and for several months after Scudder's death, when Social Security survivor benefits started for the child.

"I thought that the more we cooperated, the better chance we had of getting Bethany back," Turney said. "Now I know differently. I just feel so disappointed that agencies ... that advertise that their goal is to keep families together have had a goal to keep this family apart."

Time has become the enemy. The court is expected to give weight to the fact that Bethany has been with the same foster family since August 2002.

Scudder's relatives were dismayed that Bethany remained with the foster family after Scudder died.

"When we came up for the funeral in October, we thought we'd be bringing Bethany back with us because of the will, and she's still in foster care," Little said in a telephone conversation from her Florida home. "Everybody is astounded."

Little will be in Rockford to make her case for adoption before Judge Kennedy.

"Bethany was in the orphanage until she was almost two, and she has been in our family since then," Little said. "It's not like we're total strangers. She's been in our family for five years.

"This whole thing is like something you read about that happens to somebody else, not to us."

Blood relatives and legal relatives (in adoption cases) may not necessarily have higher standing than non-related individuals, said Adele M. Morrison, who teaches family law at Northern Illinois University College of Law.

"The best interest of the child exists as the grounding principle for all decisions made in family law and cases dealing with children," she said.

Children cannot be parceled out in wills the way people distribute jewelry and property, she said.

"The will is an expression of her desires," Morrison said of Scudder's last wishes, "but you really can't will kids to other people."

The other "family" watching this case closely includes people who are involved in international adoptions. Maintaining ties with other children who have similar adoption stories can be important, said Cyndie Norton, of the Lifelink adoption agency.

"The importance is more in the long range, when they are formalizing their identities," Norton said. "These friendships help to validate who they are and where they come from."

Madaline Carpenter, of Dekalb, adopted her first daughter from China when Scudder adopted Bethany. Like Scudder, Carpenter and her husband returned to China for a second daughter.

The two families became close and got together often until Esther died and Bethany was placed in foster care.

"We are all brokenhearted," Carpenter said. "There were two travel groups that mourned and grieved for Esther. We also mourned and grieved for the loss of Sandy. Now, we're mourning the loss of Bethany."

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