Court backtracks in Baby Sam case

Author: STEPHEN NOHLGREN

St. Petersburg Times

Now 5 years old, the youngster once known as "Baby Sam" is back in legal limbo.

The Alabama Supreme Court, which previously ordered that Sam Johnson be returned to his biological father in Florida, backtracked Friday in a ruling that seems to give the Tuscaloosa, Ala., couple who raised Sam at least a shot at retaining custody.

Most of the ruling favors Sam's biological father, New Port Richey resident Christopher Vietri. Lower courts should not have stripped away Vietri's parental rights in 1998, the Supreme Court ruled. Nor should the lower courts have allowed Tuscaloosa residents Mark and Tracy Johnson to adopt Sam.

Rather than simply ordering Sam's return to Florida, however, the ruling sends the case back to the lower court "for proceedings to determine the proper custody" of Sam.

Vietri and his Florida attorney would not comment. His Alabama attorney, Martha Jane Patton, said she had no idea what will happen next. "Certainly, this means more delay," Patton said, "and I don't like that."

The Johnsons indicated they intend to keep up the fight.

"At the end of this journey, we are optimistic that Sam's best interest will be found in not disrupting the life he knows here in Tuscaloosa, Ala.," they said in a statement released by their lawyers. "We intend to approach the further proceedings over custody of Sam with Sam's best interest in mind."

The ruling raises unprecedented questions about which standard the lower court judge might use in deciding custody, said University of Alabama law professor Noah Funderburg, who is chair-elect of the Alabama Bar's family law section.

Alabama law gives strong preference to biological parents in custody disputes with third parties such as the Johnsons. Just the "best interest" of the child is not enough, he said. Before arguing that Sam would be better off staying with them, the Johnsons must overcome a strong legal presumption that a natural parent is the best parent.

Occasionally, grandparents or other third parties have won custody battles by showing that parents were neglectful, addicted to substances or otherwise unfit.

But "it would be peculiar" for a court to rule against a father who has never had a chance to raise the child and demonstrate what kind of parent he might be, Funderburg said.

The five-year adoption snarl was set into motion in 1996, when Sam's biological mother, Natasha Gawronski, signed newborn Sam over to Adoptions By Choice, a Tampa agency. She lied and said she didn't know who the father was. Then she told Vietri their baby had died at birth.

The couple had quarreled and separated months earlier, and Vietri had removed furniture from their Palm Harbor apartment "to teach her a lesson."

Unable to find any death certificate, Vietri filed a paternity action in Pinellas-Pasco Circuit Court, discovered that his son was living in Alabama and eventually secured a custody order.

The Johnsons learned about Vietri's custody fight when Sam was 11 weeks old. By then, they said, they had bonded with the infant and refused to give him back. After losing several court fights in Florida, they petitioned the Tuscaloosa court for adoption.

After hearing testimony, Tuscaloosa Circuit Judge Philip Lisenby approved the adoption and terminated Vietri's parental rights in 1998, declaring that Vietri had effectively "abandoned" Sam by abusing and failing to support Gawronski during her pregnancy, a charge Vietri denied. Alabama's appellate court upheld the ruling.

Last November, the Alabama Supreme Court reversed those decisions 5-4, saying state law at the time contained no provisions for terminating a father's rights because of "pre-birth abandonment." The justices ordered that Sam be returned to Vietri.

But a few weeks later, after the Johnsons asked the court to reconsider, the court took an unusual detour and ordered the parties into mediation, hoping they would find a compromise.

The failure of those negotiations led to Friday's ruling.

The three-page main opinion, which controls the case, gives no guidance to how Lisenby should "determine the proper custody."

Sixty-nine pages contain concurring opinions that carry no force of law but do signal how justices viewed aspects of the case.

Four justices noted that people who abandon their children can lose their parental rights only if that abandonment continues during the six months immediately leading up to the court action. Even if Vietri abandoned Sam during the pregnancy, the justices said, he was fighting to get him back soon after Sam's birth. The Johnsons didn't file their adoption petition until Sam was 17 months old.

Statutes that describe how misbehaving parents can lose their children are written in the present tense, designed to describe current conduct, not conduct that "may have existed at some point in the past," said Justice Harold See.

Even Lisenby had noted that Vietri "is now married, that he and his wife have a son, and that (Vietri) and his wife appear to provide adequate parenting to their child," See wrote.

But Justice Lyn Stuart suggested that Lisenby should still consider Vietri's conduct before Sam was born while weighing his fitness as a parent. She noted that Lisenby had determined that Vietri had abused Gawronski physically and emotionally. Stuart also faulted Vietri for not sending child support payments to the Johnsons during the custody dispute.

Funderburg, the law professor, said the case could easily stretch on for another year if Lisenby decides to allow a full contest about Vietri's current fitness as a parent.