Fate of adopted child is in question

Date: 2010-09-24

Area biological father seeks return of 3-year old son

By JENNIFER FEEHAN

They all tried to do the right thing.

Benjamin Wyrembek wanted to be a father to his biological son.

Jason and Christy Vaughn wanted to adopt a child.

Paperwork was filed. Hearings were held, and nearly three years later, the fate of the little boy at the center of the debate remains uncertain.

On Tuesday, the Vaughns were served with an order from Lucas County Juvenile Court to hand over the nearly 3-year-old boy named Grayson to Mr. Wyrembek, prompting their attorney to file another flurry of motions to prevent the surrender.

"We never set out to steal a baby. That wasn't our intention," Mr. Vaughn of Sellersburg, Ind., said in a telephone interview Thursday.

While he and his wife were aware of the biological father's intentions from the beginning, Mr. Vaughn said the Swanton man refused to meet or talk with them after Grayson's birth. As time went on, they became convinced the law was on their side.

"He's never contacted us directly. He's never asked how the child is doing. He's never sent a birthday card," Mr. Vaughn said. "What they'll say is they've litigated this from the beginning, that he filed a paternity action in the very beginning, that he's done everything he can do.

"Our position is litigation is not the same as support. While I will admit he has filed lots of court motions, what I also will state is he has never contacted Grayson."

Swanton attorney Alan Lehenbauer, who represents Mr. Wyrembek, said he and his client are uncomfortable that what should be a confidential adoption and custody case has become so public.

Pointing out that the Vaughns have been unsuccessful in every court, he issued this statement: "My client, the biological father, was awarded legal custody by an Ohio court after consideration of all evidence. A biological parent has a constitutional right to the care and custody of his or her children. My client believes that any publication or newscast involving his child will only serve to further disrupt his child's well-being. My client has sought the return of his child since shortly after birth and will not relitigate this matter in the media."

Cincinnati adoption attorney Michael Vorhees, who represents the Vaughns, clearly is not done litigating the case. He blames the Ohio courts that have been involved in the case with blatantly failing to follow state adoption law in the case.

He contends Lucas County Juvenile Court Judge Denise Cubbon did not have jurisdiction to award custody of Grayson to Mr. Wyrembek. And he faults the courts on up the line — the Sixth District Court of Appeals and then the Ohio Supreme Court — with ignoring the law as well.

"The law says you don't need [the birth father's] consent for adoption if he willfully abandoned the birth mother during the pregnancy," Mr. Vorhees said, adding that he was prepared to prove to the court that Mr. Wyrembek provided neither financial or emotional support to his former girlfriend and son during and after the pregnancy.

He said he never got the opportunity to argue that point in court, and three Ohio Supreme Court justices agreed with that argument in the high court's July 22 opinion.

"Wyrembek timely registered with the Putative Father Registry, but failed to establish a parent-child relationship before the adoption petition was filed," Justice Eric Brown wrote in his dissent. "Therefore, Wyrmebek is a putative father for the purposes of the adoption proceedings. The probate court should have conducted a hearing to determine whether Wyrembek's consent was necessary under [state law]."

Justices Judith Lanzinger and Robert Cupp also dissented in the 4-3 opinion that upheld prior decisions in the appeals court and Lucas County Probate Court dismissing the Vaughns' adoption petition on the grounds that Mr. Wyrembek began his paternity and custody action prior to them filing for adoption.

According to court filings, Mr. Wyrembek was seeing a married woman in 2007 when she became pregnant. She broke off the relationship with Mr. Wyrembek and divorced her husband, ultimately surrendering the child at birth to Adoption by Gentle Care, a Columbus-based adoption agency.

Mr. Vorhees said Mr. Wyrembek may think he did all the right things by registering with the Ohio Putative Father Registry after Grayson's birth and filing for paternity, but he said the law requires more.

"He had an obligation, and he didn't meet it, and that's been wiped out by these Ohio courts completely ignoring these statutes," Mr. Vorhees said.

The Vaughns have filed a motion to reconsider with the Ohio Supreme Court as well as a new petition for adoption in Franklin County Probate Court. In Lucas County, he filed a motion Wednesday requesting a stay of Judge Cubbon's order that required the Vaughns to surrender Grayson to Lucas County Children's Services by noon Wednesday.

The motion says, among other things, that Ohio law requires a transition plan for transferring a child to a new home in a situation like this.

Judge Cubbon was on vacation and could not be reached for comment Thursday. Marci Cannon Fisher, general counsel for juvenile court, said she could not comment because "we still have pending litigation here in this court."

Mr. Vaughn, who has two biological children — Jackson, 7, and Addison, 2 — described Grayson as "a great kid, the life of the party."

He said introducing the toddler to his biological father over a period of weeks only make sense. In the last three years, Grayson met Mr. Wyrembek only once during a court-ordered visit in Toledo.

"It's the law and it's to protect the children," Mr. Vaughn said of the transition plan they've requested. "Everything going on with this battle is separate from protecting Grayson."

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