Couple lose their rights to Tamia

Hearing: A judge gives DCFS custody while the Illinois birth mother fights for the baby's return; Baby Tamia now under state care

Kirsten Stewart

The Salt Lake Tribune

Baby Tamia, the 6-month-old girl at the center of a custody battle between a Utah couple and Illinois mother, remains in Utah custody after the arrest of the couple on drug charges, her fate uncertain.

On Tuesday, 3rd District Juvenile Court Judge Kimberly Hornak ruled to keep the baby under the protection of Utah's Division of Child and Family Services (DCFS) pending the outcome of the custody dispute unfolding in Cook County, Ill. An Illinois judge has determined the Utah adoption agency that placed the baby violated interstate adoption rules and is expected to decide today what is next for the child.

Meanwhile, Midvale-based A Cherished Child Adoption Agency will retain legal guardianship and has revoked the adoption, leaving the Utah couple no hope of ever seeing Baby Tamia -- they renamed her "Taya" -- again. In Utah, adoptions aren't court-finalized until six months after the child is placed and a juvenile court judge signs off on a post-placement review of the family.

"We have felt nothing but a wall of pain since this all started," said the prospective adoptive father, Stephen Kusaba, as he exited the Matheson Courthouse on Tuesday.

He and his wife, Lenna Habbeshaw, took custody of the child Dec. 4, when the birth mother signed papers relinquishing her.

Said Habbeshaw: "We wanted to give her the perfect life. We will miss her dearly."

Kusaba, 50, and Habbeshaw, 45, were arrested last week after undercover narcotics detectives allegedly found cocaine, marijuana and drug paraphernalia in their Salt Lake City home. They face felony drug charges for possession and, until Tuesday, were answering to child endangerment charges.

Hornak made clear the couple no longer have "standing" in the juvenile court proceeding, which will resume Friday.

But lawyers for A Cherished Child say that hearing may be unnecessary.

"We believe the [Illinois] judge will order the child returned to Chicago. Given the circumstances we believe that's in the best interests of the child," said Salt Lake City attorney Richard VanWagoner. "The question is whether the child should go back to the birth mother or be placed in Illinois custody and adopted."

Attorneys for the birth mother, Carmen McDonald, will argue today in court that the baby belongs with her. McDonald, who has a history of mental illness and suffers from post-partum depression, sued A Cherished Child, arguing that agency staff coerced her into surrendering her baby. She is joined in the lawsuit by the baby's maternal grandmother, Maria McDonald.

"Carmen and Maria are now living under the same roof and have a loving environment. There is no doubt in my mind that's the best environment for this child," said McDonald's attorney, Robert Fioretti. "If the judge will allow me, I'm going to get the baby on the first plane back."

The adoption agency, however, will argue to have the baby re-adopted.

"The agency did a thorough evaluation and went through all the necessary steps to ensure the relinquishment was informed and in the best interests of the child," said VanWagoner.

Habbeshaw and Kusaba, who for the past three months called the baby theirs, agree.

"Our only hope is that this child ends up in a good home," said Kusaba, claiming he met twice with McDonald, who picked the couple from a list of profiled families, and who he says never faltered in her desire to surrender the baby and was adamant that the affair be kept secret from her own family.

"She told us that she lived at a homeless shelter with her baby," said Kusaba.

Said Habbeshaw: "We offered to send her letters and photos and she declined. All she asked of us was to sign an affidavit allowing the baby to access information about her birth mother when she turned 18."

The Utah couple have been trying to have a baby for more than a decade, undergoing expensive hormone treatments and suffering miscarriages until they settled on adoption.

Taking "Baby Tamia" home was "like a dream," said Habbeshaw. "Her first word was 'dada.' She says it in a string, 'dadadada.' "

"That baby was loved by all of us," said Habbeshaw's mother, Maria Anton. "She has bonded with my daughter. I don't know what that poor child is doing now. She is probably crying."

Utah licensing officials are investigating to determine whether A Cherished Child followed state adoption laws. But the licensing division took part in approving Habbeshaw and Kusaba despite their history of drug offenses.

Under Utah law, prospective adoptive parents must undergo criminal background checks coordinated by the state Human Services Office of Licensing. The office also screens parents against a database of child abuse offenders.

Prospective parents are rejected if their histories show any felony offense or misdemeanors and infractions that qualify as sex crimes or crimes against a person, such as domestic violence, assault and battery. Misdemeanor drug offenses don't automatically disqualify a parent, but trigger a secondary review process involving a four-person board of Human Services officials, which looks at the circumstances of the crime and remedial steps the parent may have taken.

Kusaba and Habbeshaw underwent such a review and were cleared for adoption by the board, said Human Services spokeswoman Elizabeth Sollis.

"We send the files to the adoption agency and only keep files if a person is denied," said Sollis. "We act as a gathering agency."

kstewart@sltrib.com