'Baby Emma' case puts state adoption laws between father, child

By Jerry Markon

Wednesday, April 14, 2010

John Wyatt raced to the hospital, excited to be a father but worried about the mother.

His girlfriend had promised to call him the moment she went into labor, but she'd turned off her cellphone. Wyatt had been calling it for hours. Finally, an operator at Potomac Hospital in Woodbridge confirmed the news: His girlfriend was there, and his daughter had been born.

When Wyatt arrived at the hospital that morning of Feb. 11, 2009, he got the shock of his 20-year-old life: Administrators insisted that no such baby was there -- and no such mother.

Court records show that Wyatt's daughter, Emma, was born Feb. 10, at that very hospital, and that she spent the next week at two Woodbridge hotels before being put up for adoption -- in Utah. "We just want Emma to come home," says Wyatt's mother, Jeri. "My son wants his child. I want to see my granddaughter."

More than a year later, a cross-country court fight over the child known as "Baby Emma" has yet to settle the question of whether the strawberry-blond, blue-eyed girl was illegitimately taken from her father or legally put up for adoption by her mother, 20-year-old Emily Colleen Fahland, a George Mason University student. The highly unusual dispute pits Virginia against Utah; a Stafford County judge in December awarded Wyatt custody of Emma and cited a federal kidnapping statute in ordering the state to bring her back from Utah.

Virginia officials say they lack the legal authority to follow the judge's order.

In Salt Lake City, a Utah judge issued a competing order granting temporary custody to the adoptive couple in that state, and Emma has been living with them ever since. Attorneys for the couple say Wyatt, of Dumfries, failed to assert his parental rights in time to contest the adoption. His appeal is pending in a Utah court.

"My daughter is being held hostage," says Wyatt, now 21, a D.C. nightclub worker who has never seen Emma. "She was kidnapped and cradle-robbed from me, and I'm baffled that nothing has been done."

The case, which has become the talk of the nation's close-knit circle of adoption lawyers since the Wyatts appeared on the "Dr. Phil" show, is the latest to spotlight Utah adoption laws that experts say are unusually tough on unmarried fathers. Lawyers cite at least 10 recent cases in which babies were taken to or born in Utah and adopted without an out-of-state father's consent.

In one case, the Utah Supreme Court last year ruled in favor of an unwed Wyoming mother who falsely told the father she miscarried, traveled to Utah to deliver the baby girl and put her up for adoption. "Utah risks becoming a magnet for those seeking to unfairly cut off opportunities for biological fathers to assert their rights to connection with their children," Chief Justice Christine Durham wrote in dissent.

Joan Hollinger, a University of California at Berkeley professor and a leading authority on adoption law, called Utah's decisions in the Baby Emma case "outrageous" because Wyatt filed for custody in Virginia just eight days after Emma's birth. Utah laws and court decisions, she said, "make it virtually impossible for an out-of-state father to prevent the adoption of an out-of-wedlock child when the mother is determined to go forward."

Utah is culturally conservative, and lawyers say the powerful Church of Jesus Christ of Latter-day Saints, with its emphasis on family values, has strongly encouraged adoption-friendly laws. "The Utah statutes can be harsh, but they are looking at what's best for the child: stable placements and two-parent families," said David Hardy, a lawyer for LDS Family Services, a Mormon Church-affiliated adoption agency that is among the nation's largest.

Text message disputed

The adoptive couple in Utah, Thomas and Chandra Zarembinski, could not be located, but their attorney, Larry Jenkins, said the experience has been "gut-wrenching" for them. "They're the only parents this child has ever known," said Jenkins, who added that Emma "is doing extremely well."

Emma's birth mother, Fahland, did not return repeated telephone calls. Fahland's attorney, Sharon Fast Gustafson, said Fahland believed at first that adoption "was the right thing for this child. She was single, planning to go to college, and she and the father did not have long-term plans."

In recent months, Fahland has come to regret that decision, Gustafson said. Still friends with Wyatt, Fahland "sees this father who is wishing she hadn't done it," Gustafson said.

Wyatt still remembers Fahland from second grade. They attended Saint William of York Catholic School in Stafford together, and they began dating in seventh grade. The relationship continued, off and on, through high school.

The surprise pregnancy came in May 2008. "She started crying, but I was happy," Wyatt said. "My father died when I was 10, so I've always wanted to be there for my children."

Wyatt argued vehemently against Fahland's decision to put the baby up for adoption. The couple talked of raising the child together and, eventually, getting married, Wyatt said.

On Feb. 5, 2009, Fahland sent Wyatt a text message that has become central in the dispute. Wyatt recalls that Fahland texted him that she was "receiving information" from a Utah adoption agency. He immediately called her, and says she assured him that they would make a decision jointly -- and that she'd alert him the minute she went into labor.

In their final conversation, about 11 hours before the birth, Wyatt says, Fahland vowed they would raise the baby together. Gustafson declined to comment on what Fahland said.

"She did not feel she could give the baby what the baby needed," Gustafson said. "And she didn't think John could either. These are very emotionally charged hours when a baby is born. People are having to work hard to make an immediate decision. She was just thinking about what was best for the baby."

In the Utah courts, Fahland said in an affidavit that she told Wyatt in the Feb. 5 text that she "intended" to put the baby up for adoption in Utah. Jenkins, the Zarembinskis' attorney, said that gave Wyatt time to file a court action in Utah that could have allowed him to contest the adoption. "Frankly, he never did," Jenkins said.

On the morning of Feb. 11, Wyatt awoke early and sensed something was wrong -- Fahland's cellphone had been off throughout the previous day. A few hours later, according to Wyatt and his mother, the switchboard operator at Potomac Hospital identified Fahland as a patient and said she'd delivered a baby girl.

Shocked that hospital administrators later denied that, Wyatt called his mother. She raced to the hospital, too, and threatened to sue when the hospital told her the same thing. "They were hiding this baby from us," Jeri Wyatt said. "They looked us in the eye and said there was no baby or birth mother there."

Charlene Wilkins, a spokeswoman for the hospital -- now called Sentara Potomac Hospital -- declined to comment, citing patient confidentiality and the legal dispute. The hospital has not been sued. In documents given to Wyatt's attorneys during pretrial discovery, Fahland said Emma was born at Potomac Hospital at 11:02 a.m. Feb. 10.

Differing guidelines

Fahland and the baby spent Feb. 11 and 12 at the Fairfield Inn in Woodbridge along with an employee of A Act of Love, the Utah adoption agency, court documents show. Fahland signed the adoption consent forms Feb. 12 in the presence of that employee, Laraine Moon. The agency did not return telephone calls, and it is unclear how or when the agency got involved with Fahland.

Court records show that the Zarembinskis cared for Emma at a hotel in Woodbridge before flying her to Utah.

On Feb. 18, Wyatt sued for custody in Stafford County Juvenile and Domestic Relations District Court. His lawyer had officially learned of the baby from Fahland's lawyer. "I found out I had a daughter through word-of-mouth," Wyatt said.

In his December order granting custody, Judge Gerald F. Daltan said that because Wyatt is Emma's "acknowledged father" and had sought custody five days before the Zarembinskis filed adoption papers in Utah, Emma could not be adopted without his consent. He called Wyatt "a good and decent person" who is fit to raise Emma.

But a judge in Utah granted the Zarembinskis temporary custody in August while the adoption proceeds. And the same judge ruled that Wyatt cannot object to the adoption, partly because he failed to move quickly enough to assert his parental rights under Virginia law -- even though the Virginia judge said he had.

"That's the problem with this case," said Wyatt's Virginia attorney, Stanton Phillips. "Virginia does one thing, and Utah does something else and thumbs its nose at Virginia. Since the child is in Utah, John is really stuck."

The Utah Court of Appeals will hear arguments May 24.

Wyatt continues his fight. That included the appearance on "Dr. Phil" in December. Wyatt's mother started that process by clicking on a link on the show's Web site soliciting viewers with adoption stories to tell. The show contacted her, and she and Wyatt appeared with the Zarembinskis' attorney.

"The only thing that keeps me going," Wyatt said, "is knowing that one day I will get to see and hold my beautiful daughter."