Key Court Test Will Set Baby Boy’s Future : Parenting: A judge must decide if the natural father of a child given up by the mother for adoption to a San Diego couple is fit to raise the 18-month-old.

Eighteen months ago, Mark and Stephanie had a baby. She was 16. He was 22. Over his objection, she gave the baby up for adoption.

A San Diego couple, John and Peggy, became the guardians of little Michael, intending to adopt him. John and Peggy were even there in the delivery room with Stephanie, who had fled Arizona to get away from Mark--who’s still there, working a factory night shift, swearing that he’s making something of himself, that his drug problem is over and that he wants his son.

People who know John and Peggy uniformly call them the All-American couple. They have one other young son, also adopted. John is an accountant, Peggy a homemaker. They are the only parents Michael has known, and for 18 months he has been a gift in their lives, a precious treasure they have cherished, according to friends.

But late last month a state appeal court in San Diego issued a ruling suggesting strongly that Mark had been unfairly deprived of his rights as a father--a ruling that could ultimately mean John and Peggy’s treasure would be yanked right out of their house and sent to Arizona.

If, the court said, Mark can show he has made a reasonable effort at preparing to be a father and is otherwise fit to be a parent, he can claim the child. Whatever rights John and Peggy can assert would have to give way to Mark’s right to claim his son--no matter the emotional cost to John and Peggy, no matter what might seem best for the baby, the court said.

The appeal court sent the case back to a San Diego judge to measure Mark’s fitness, setting the stage for the state’s first significant test of a little-noticed California Supreme Court ruling issued earlier this year that gave dramatic force to the power of a biological father’s legal rights.

It’s also a case that features the sort of moral dilemma for which the law has no easy answer: a choice between rivals for a baby’s affection, each with natural sympathies. The winner gets the child. The loser is left with heartbreak. And the course of a child’s life is in the balance.

That’s why it’s a case fraught with intense emotion.

“There’s no doubt in my mind (John and Peggy) love him,” Mark said last week on the phone from his house in Prescott Valley, Ariz., about 100 miles north of Phoenix.

Because public records in adoption cases are limited to first names only, Mark and others involved in the case agreed to comment on the condition last names not be used.

“I know they love him very much. I know they’re taking good care of him,” Mark said. “I don’t have any really bad feelings against them personally. I just hate their guts because they have my son and they’re refusing to let me have my son.”

He added later, “There are a lot of harsh feelings on both sides. But there’s nothing I could do about them, or would want to do about them, because it would jeopardize my son too much.”

John and Peggy declined to be interviewed because of concern, Peggy said, over the “privacy of our family.” Stephanie also declined to talk, saying she was concerned that what Mark really wants is to get the baby so he can get her back, and that anything she said would leave a clue he could follow to find out where she is living.

“I really don’t want to get into it all,” Stephanie said last week on the phone.

Mark said time has passed, and Stephanie has no reason for concern. “I still love her but the relationship is over,” he said. “. . .I have no desire to have her back. I really don’t care what she does. If I wanted to find out where she was and what she’s doing, I could find out easily. I could, excuse my English, not give a damn what she’s doing.”

Stephanie’s mother, Bev, who lives in Prescott, Ariz., where Mark and Stephanie grew up, said she’s trying to make some sense of the whole thing. “Mark,” she said, “is just so immature.” Last month, she said, they passed by each other and “he flips me the bird.” He said he did no such thing.

Bev’s family has long been friendly with John and Peggy, whom she called “wonderful people, so loving and kind and incredible.”

“When the baby was born, Stephanie called me and said, ‘Mom, I know I’m Michael’s birth mother,’ ” Bev said. “But John and Peggy are his parents.”

Mark said it’s hard for him to make sense of that. “The main thing I want to (say) is that someone can come and take away your kid,” he said. “Look at me. The mother can go out and put a father’s child up for adoption, and the father doesn’t have a hell of a say so about it. To me, it’s legal kidnaping.”

Mark and Stephanie met when she was 13, maybe 14, introduced by his sister, he said. She, of course, was in school. He had dropped out midway through 11th grade.

For the next couple of years, they saw each other as much as they could. He bounced around the West, working in Colorado, Washington and California for a few months at a time but always coming back to Arizona.

About this time, he said, he had a cocaine problem that he kicked cold turkey. He earned his high school equivalency degree, began working at restaurants around Prescott and nearby Prescott Valley and proposed to Stephanie. She accepted.

“She’s got a beautiful smile,” Mark said. “I don’t know how to describe her otherwise. She’s real kind when she wants to be.”

Bev said Stephanie “had the biggest crush on (Mark). And he took advantage of her. He told her he’d had a vasectomy. She felt safe that it was OK to have sex with him.”

Mark said he did undergo a vasectomy, one summer when he was in Colorado. He traded some landscaping work for the medical service. But, he said, “the vasectomy did not take,” a fact he did not learn until it was too late.

Initially, Mark agreed that Stephanie could choose whether to have an abortion. According to a court account, he also said he would consider--until Stephanie was three months pregnant--allowing the child to be adopted.

Then he changed his mind. He asked Stephanie to move up the date of their wedding because he didn’t want the baby to be adopted by anyone. He also took videos of the sonogram and attended birthing classes, both with and without Stephanie.

About the time Stephanie was five months pregnant, in the fall of 1990, the couple began squabbling. One night, she told him she intended to break up and prevent him from having any contact with the baby. They scuffled and she fled, intent on making sure Mark did not know where to find her.

Despondent, Mark tried to commit suicide by injecting air into his veins with a hypodermic needle. He survived and sought counseling, according to a court account.

With Stephanie gone, Mark tried to find a lawyer who would press a claim for father’s rights. He said he saw at least two dozen attorneys--but he was making minimum wage working at various restaurants and couldn’t afford to pay the $500 the lawyers invariably wanted for a retainer.

On Feb. 28, 1991, he filed legal papers by himself in Arizona seeking to establish paternity and custody.

The day before, Stephanie had given birth to Michael, in San Diego. She had gone first to her grandmother’s house, then to San Diego, where Bev’s sister lives. The sister, Doris, led Stephanie to John and Peggy, and it was agreed John and Peggy would share the experience of the baby’s birth and adopt the child, Bev said.

Mark was notified in March by the San Diego County Department of Social Services of its intent to place Michael for adoption.

On April 18, John and Peggy filed formal adoption papers. There was no notice to Mark of those papers nor any mention in their briefs of his bid for custody in the Arizona courts. Five days later, John and Peggy were appointed Michael’s guardians.

Mark finally was notified of the California adoption case. Mark’s paternity suit in Arizona was dismissed and John and Peggy’s adoption case went to trial in San Diego.

During the trial last October, Mark was granted permission to visit Michael. He took various pictures of Michael, held him and fed him. Michael “smiled at him and followed him with his eyes,” according to a court account.

During the trial, Mark showed he had gotten full-time work, had obtained an apartment suitable for the baby and had arranged for child care. He presented letters of recommendation from employers, according to a court account.

Nevertheless, at the end of the four-day trial, San Diego Superior Court Judge Lisa Guy-Schall ruled that it was in Michael’s “best interests” to terminate Mark’s parental rights. She authorized adoption by John and Peggy.

Mark appealed. While the case languished at the 4th District Court of Appeal in San Diego, the California Supreme Court issued a ruling in a case from San Jose: If, though unwed, a single man becomes a father and acts like one, he should have every right to pursue a “full and enduring” relationship with his child.

The time had come, the Supreme Court said, for the court system to recognize the “rapidly changing concept of family.” A single father, it said, might be just as capable of providing a good home as a two-parent adoptive family.

Two weeks ago, based on the Supreme Court decision, the 4th District reversed the ruling that cut off Mark’s parental rights.

It no longer mattered under the law, the 4th District said, what was in Michael’s “best interests.” What was important was whether Mark had, “at all relevant times, attempted through legal channels to shoulder full responsibility for his child.”

The 4th District court said it lacked the legal authority to decide the case fully, because it needed more evidence. It sent the case back to Superior Court with instructions to decide whether Mark had “demonstrated a sufficient commitment to his parental responsibilities.”

The court pointed out his regular attendance at the birthing classes, even without Stephanie, as well as his steady work habits, the apartment and the arrangements for day care.

Even Mark’s suicide attempt and past drug use might actually work in his favor, the court said. The counseling he had received and the cold-turkey success in kicking his cocaine abuse could be seen as sincere efforts to prepare himself for fatherhood, the court said.

If, in fact, Mark tried to establish a relationship with Michael, the court said, that does not end the inquiry. The next legal hoop is whether Mark is otherwise “unfit” to be a father.

That label, though, is an egregious one usually reserved for felons and ongoing drug abusers.

“I am ready for my son,” Mark said last week. “I’ve got a good job,” now at a window-building factory, where he has been employed for almost a year, makes $7.13 an hour and is due for another raise shortly. “I’ve got a good home.”

The next hearing in the case has not been set. Though Mark said last week he is cautiously optimistic, worries remain.

Still, he said, there is reason for hope.

“There are a lot of fathers out there fighting for their children,” he said. “A lot of fathers have had their children taken away from them, wrongfully. I would like to say I now know how they feel. And I want to tell them: Stay strong. Keep fighting.”

There is also, according to Bev, reason for Mark to doubt.

“To return this child to Mark would be like the worst environment I can think of for a child to be raised in,” Bev said. “And yet the state of California is considering this? It’s insane.”