Custody of local baby in dispute

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Mom, couple battle county

By Rachel McGrath
Correspondent
Saturday, October 18, 2008

A newborn girl is at the center of a dispute that has found its way into a Ventura County courtroom.

United on one side of the issue are the birth mother from Oxnard and the Newbury Park family she chose to adopt her baby. They say the couple legally adopted the infant and have the paperwork to prove it.

On the other side is Ventura County Children and Family Services, which placed the child with another potential adoptive mother.

A court hearing is scheduled Tuesday to determine jurisdiction in the "Baby Lopez" case. A judge is expected to rule on where the girl should live.

Jozette and Luke Jacobellis, who also have a 3-year-old adopted son, were selected by the baby's birth mother, Misty Lopez of Oxnard, to adopt her daughter, who was born at Community Memorial Hospital in Ventura on Sept. 24.

On Sept. 29, Child Protective Services filed a dependency case saying that the child would be in danger if returned to her mother, who had failed a toxicology screening, even though the mother said she never wanted the child returned to her but, instead, to be placed with the Jacobellis family.

The Jacobellises and their attorney say county social workers ignored their rights and the rights of the birth mother and, they claim, illegally removed the child from the hospital even though the paperwork had been completed for an independent adoption.

"They've taken my baby," Jozette Jacobellis said in an interview. "They've not taken Misty's baby — they've taken our baby, and they have our baby in their custody."

Their attorney, Michelle Erich, who has practiced adoption law in the county for 21 years, said she has never had a case like this one.

"We've done everything we're required to do," Erich said. "This mother did not delay in acting to find a good home for her child."

Judy Webber, deputy director of the county Human Services Agency, which oversees Children and Family Services, said that for legal reasons she cannot even acknowledge that the case exists.

However, she said in an interview that the agency would only become involved in such a case, known as a voluntary relinquishment, if concerns are raised about the welfare of a child.

"Our department is required to complete an investigation when contacted by a member of the public or by a professional who is a mandated reporter," Webber said.

Since the Juvenile Dependency Case takes legal precedent over an adoption, the Jacobellises are now left without the baby who they and their lawyer say was legally adopted.

"We fully acknowledge the county's right to put a hold on the child, but it's unnecessary. There are no legal grounds," Erich said.

The county's priority is to keep kids safe, Webber said.

"We are overseen by the court. When the court agrees with us, a child remains in our custody. If the court does not agree, then the child is returned to its mother," Webber said.

Erich says the county agency's action represents a shift in county adoption policy. She said the county appears to be picking on women who have substance abuse problems by taking away their children as punishment.

Webber said there is no shift in policy because "there is no standard policy."

"All cases are treated on an individual basis," she said. "I can't speak to the legal rights of the mother."

Webber added that a decision to take custody of a child is solely at the discretion of social workers who must then present evidence within 72 hours to a judge to continue holding the child.

"There's definitely a problem in Ventura County, and it is aberrational compared to what is going on in the other 57 counties in California," said Doug Donnelly, past president of the Academy of California Adoption Lawyers.

Donnelly is a Santa Barbara-based adoption attorney who has handled numerous Ventura County adoption cases in more than 30 years of practice.

"The purpose of the dependency system is to protect a child who needs protecting, not to punish a mother who had made an adoption plan and yet still has a drug problem," Donnelly said. "I have encountered similar cases around the state, and the Legislature has addressed this issue, albeit somewhat clumsily, and in most counties the powers that be are able to recognize that they are there to protect children and that they don't need to waste taxpayers' money if an adoption plan has been made to protect the child."

Webber acknowledged that the agency doesn't necessarily have to place a child in care while a dependency case proceeds. Sometimes the child remains with the parent or family until a final decision is reached.

That decision is made, she said, based on an assessment of risk factors, the availability of a support system and the agency's structured decision-making process.

Lopez, who has had other children who have spent time in foster care, says she wanted to prevent her newborn from being put into the child protective system.

"I am so angry," said Lopez, recalling the moment when she learned her child had been given to strangers. "I had an adoption plan for my baby. I just wanted to give my baby a good life. I wanted to keep my baby out of the system. I know nothing about this other family."

Each month, about 25 children are adopted through the Ventura County courts system, Erich said.

Custody of local baby in dispute