The state Supreme Court on Wednesday upheld a predecent-setting jury verdict granting $7.8 million in damages to a man because his former girlfriend, her family and lawyer gave up his child for adoption without his consent.
Gazette Online Adoption Article By Jennifer Bundy THE ASSOCIATED PRESS
The case is the first in which an unwed father who never had custody of the child was awarded monetary damages as a result of the mother placing the child for adoption without his consent, said the mother's lawyer, Lonnie Simmons.
The 4-1 ruling is a victory for fathers and children, said the father's lawyer, Marvin Masters. It should deter adoption lawyers from trying to hide children in adoptive homes in other countries, where biological fathers' constitutional rights of due process and equal protection are not valid, Masters said.
"It's a very significant opinion," Masters said.
The mother, Anne Conaty Selvaggi of Huntington, said, "I wouldn't do anything differently if I had to do it over. I did the right thing for my baby. ... This has not made any difference.
New points of law included in adoption ruling
THE ASSOCIATED PRESS
A state Supreme Court ruling Wednesday orders a Cabell County woman, her parents, brother and lawyer to pay $7.8 million to the father of a child given up for adoption without the father's consent. The ruling contained several new points of law. The points, precedents for subsequent adoption cases, include:
The instant a child is born, both biological parents, even though not married, have a right to establish a parent-child relationship. An unwed father must, upon learning of the existence of his child, demonstrate his commitment to it by participating in its care, rearing and support, and by starting to establish a meaningful parent-child relationship.
Any people who "plot, plan, scheme or otherwise conspire" to intentionally and wilfully conceal information from a parent about a birth or the physical location of a child may be held liable for their participation in the conspiracy.
A parent may sue anyone who interferes with his or her parental or custodial relationship with the child. The court listed the legal points that parent must prove.
The person who is sued for interference can use as a defense that the interference was justified to protect the child from physical, mental or emotional harm. They also cannot be held liable if they acted negligently rather than intentionally and had a "good faith" belief the interference was proper.
Anyone who appeals a lower court ruling to the Supreme Court has to post an appeal bond covering the amount of damages they were ordered to pay. If they do not, the appeal will be dismissed, and the lower court ruling will stand.
"He wanted me to have an abortion. I chose to spare that baby's life, to give it life, give it a home, two parents that love the baby," Selvaggi said.
Masters' client, Dr. John Kessel of Hickory, N.C., has said he discussed abortion and other options, including adoption and marriage, with Selvaggi and did not pressure her to have an abortion, as she contends, Masters said.
Neither Selvaggi nor Kessel have seen the baby.
"I think that's best. If he ever wants to meet me, that's different. He's part of that family now," Selvaggi said.
There was no listing for Kessel in Hickory, and he did not return a message left with Masters.
Selvaggi and Kessel dated for several years and broke up shortly before she found out she was pregnant. They tried to reconcile and briefly were engaged, but she ended the relationship and left the state.
She visited relatives in several states and gave birth in California, where her lawyer was located, in July 1991.
Kessel, meanwhile, obtained a temporary restraining order in Cabell County that barred the adoption until he could establish paternity. The jury found that Selvaggi and her attorney knew about the court order and placed the boy for adoption anyway, although Selvaggi said she was not notified of the court order until the adoption was complete.
Selvaggi turned her infant son over to Kenneth and Patricia Holmstrom in Canada. The couple lives in Calgary, Alberta, where unmarried fathers have extremely limited rights and it is rare for adoptions to be overturned after six months. Kessel did not appeal a Canadian court ruling that the adoption there was final.
A Cabell County civil jury in December 1995 awarded Kessel damages, ordering adoption lawyer David Keene Leavitt of Beverly Hills, Calif., Selvaggi, her parents and brother to pay $1.97 million in compensatory damages.
The jury also said Leavitt should pay $5 million in punitive damages; Selvaggi's brother, lawyer Brian Conaty, $500,000; Selvaggi $250,000 and each of her parents, Dr. Thomas Conaty and Eleanor Conaty, $50,000.
The Supreme Court upheld the amount of damages, saying they were not excessive. But it threw out one claim against Selvaggi, that she interfered with Kessel's parental relationship with his son, because one parent cannot sue another on that ground. That does not change the amount of damages she owes. The court upheld that claim against Leavitt and the three Conatys.
The court upheld the jury's verdict of fraud against Selvaggi, Leavitt and the three Conatys.
Leavitt had argued that West Virginia courts have no authority over him and wrongly denied him an opportunity to appeal his case because he refused to post a bond.
The U.S. Supreme Court in October rejected his appeal on that issue without comment. In June, a California appeals court said West Virginia does have jurisdiction over Leavitt and called his behavior "immoral, reprehensible and dishonest."
Leavitt did not immediately return a phone call Wednesday.
The West Virginia Supreme Court's 244-page opinion said, "We do not intend to haphazardly intrude upon a biological mother's right to conduct her pregnancy in the manner in which she, herself, chooses. Nevertheless, we recognize with equal importance the right of a biological father who has 'grasped the opportunity' to establish a relationship with his child, and the corresponding, albeit limited, right of a child to associate with his-her biological father.
"We cannot condone the actions of the defendants in this case," the opinion said. Both parents, the instant a child is born, have a right to establish a relationship with the child, the court said.
A separate opinion by Justice Margaret Workman said, "With the exception of the California lawyer, ... there are no real villains here."
Workman concurred with part of the opinion and dissented from part. She said the case should have been sent back for another trial because of numerous errors in the lengthy instructions Cabell County Judge O.C. Spaulding gave the jury.
The majority opinion by Chief Justice Robin Davis agreed that several instructions were wrong, but said the errors were not serious enough to reverse the outcome of the case. The court also upheld Spaulding's ruling dismissing before trial a claim by Kessel's father seeking damages because he was denied the right to have a relationship with his grandson.
Simmons, who also represents Leavitt and the Conatys, said all were disappointed in the decision and have not decided whether to ask the court to rehear the case and whether to appeal to the U.S. Supreme Court. Justice Thomas McHugh was called from retirement to continue his participation in the case so his replacement, John McCuskey, did not participate.