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Lawsuits enter fight over child By Chris Bristol of the Mail Tribune Albany attorney Dennis Messoline isn't comfortable with two particular words -- theft and rape -- when discussing a certain client. He prefers "fraud" instead of theft when asked to describe the way Carl Gruett lost custody of his girlfriend's baby to an adoptive couple from Ashland. As for rape? "Understand, these two were boyfriend and girlfriend, and she got pregnant from sex," Messoline said, referring to the birth mother, who was 15. Gruett was 23. "The charge came out of that pregnancy," he continued. "The DA basically reduced it to a Rape 3, which is just about a misdemeanor... "It was like a careless driving ticket." Now it's like a lawsuit, because Gruett wants the baby back -- or at least $1 million compensation. And the adoptive parents are suing, too. The defendant in both cases is PLAN International Adoption Services Inc., a private nonprofit agency based in Portland that has handled more than 1,600 adoptions over the past 20 years. Gruett, now 25, of Scio, is suing PLAN in Linn County Circuit Court, alleging the agency's staff defrauded him of his paternal rights "in order to collect their fee." Meanwhile, the Ashland couple who adopted the child filed their own suit in Jackson County Court, alleging PLAN needlessly jeopardized the adoption by notifying Gruett of the adoption before the baby was born -- a notification that is not required under Oregon law. At the heart of the case is an Oregon law that can be used to cancel the custody rights of unwed fathers if they fail to file for paternity before a child's birth. For experts like John Chally, a Portland attorney who specializes in contested adoptions, the dispute is not unique, despite Oregon's reputation as one of the most adoption-friendly states in the country. Even so, he agreed with a Linn County judge who called the case "rather an odd situation." "In this field, this kind of stuff happens," he said. "It's certainly an example of a case gone bad." According to court records, the baby was born Sept. 22, 1997, and was quickly handed over to the adoptive parents, David and Elizabeth Dunn. The child has been with them ever since. Gruett sued for custody in Linn County, arguing that PLAN violated his rights by waiting until the last second to notify him of the impending adoption. Attorneys for the Dunns argued that regardless of PLAN's attempt to notify, nobody but Gruett was responsible for protecting his legal rights. They noted testimony that Gruett had known for months that his girlfriend was pregnant and cited precedent-setting cases that fathers who miss the deadline to file for custody are simply out of luck. But Judge Rick McCormick ruled in Gruett's favor, finding that PLAN essentially created rights for Gruett that normally do not exist and then violated them. He also recommended an "order of abatement" suspending or even revoking the adoption. Luckily for the Dunns, the adoption case was transferred to Jackson County last year. Two days after the girl's first birthday, Judge Phil Arnold ruled the Dunns did nothing wrong and approved the adoption on the grounds it met the primary legal test of being in the child's best interest. Gruett is now contesting custody before the Oregon Court of Appeals. Oral arguments in Salem are set this week. Linda Vollman, a spokeswoman for PLAN and a co-defendant in the Gruett suit, said her agency has been taken to court only a handful of times. She accused Judge McCormick of ignoring the notification law. "This particular birth father ... knew from the very beginning," she said. "In most cases, if a birth father tries to establish paternity after placement, it might have one hearing and a judge would basically say, `You lost your opportunity."' "We got a really off-the-wall judge who ... chose not to follow the statute," she added. "It was unfortunate for the (Dunns). It was unfortunate for us. It's caused a lot of grief and heartache." Chally, who is not directly involved in the case but is familiar with it, said he was surprised by McCormick's ruling. "Frankly, most people aren't terribly concerned about the rights of a rapist," he said, "which kind of makes it surprising it went that way." Messoline bristled at the characterization that his client is a rapist. Gruett pleaded guilty to third-degree rape (commonly known as statutory rape) and was put on probation for three years. "It was almost a slap on the wrist," Messoline said approvingly. "This was a boyfriend/girlfriend thing." In their lawsuit, the Dunns accuse PLAN of nearly botching the adoption by unnecessarily notifying Gruett of his rights and then mishandling the notification. They seek damages of $40,000 in legal expenses and $200,000 in noneconomic damages for emotional distress. Elizabeth Dunn lost her appetite and then lost weight, the lawsuit says. Through their attorney, Bill Schireman, the Dunns declined an interview for this story. Vollman, the spokeswoman for PLAN, said the agency always tries to notify biological fathers of their rights -- and clients like the Dunns know it. "If they don't fit the legal definition, we still feel like there's a moral responsibility," she said. "It's worked very well for us in 99.9 percent of the cases." PLAN has been in operation since 1975 and averages about 200 adoptions a year, making it one of the two or three busiest private agencies in the state. "This is the first case we've had that's gone on and on, and we do feel bad," she said. "This isn't what we like to see happen." Chally said Oregon law is written to protect the rights of fathers "who act like fathers" -- and the rights of adoptive parents, who typically bond almost instantly with their children. "The commitment comes so fast and so hard," he said. "It's a sickening feeling to lose a child, whether there is a biological connection or not." Noting that the adoption decree is still being contested, even though the Dunns have had the girl almost from the day she was born two years ago, Chally said it is impossible to know whether the Court of Appeals might find in Gruett's favor. "If you use the word `possible,' the answer is absolutely yes," he said, but added, "I wouldn't use the word `probable."' Mail Tribune Copyright � The Mail Tribune 1999, Medford, Oregon USA