Surrogate Mother Says That Couple Deceived Her : Custody: She says that she was misled into signing a relinquishment, and that the Moschettas assured her that their failed marriage was sound.

Surrogate mother Elvira Jordan testified Tuesday that a Santa Ana couple deceived her into giving up her baby by assuring her that their marriage was solid, knowing that if she knew they were divorcing she would not give them her child.

Jordan also testified that Spanish is her native language, that she has a seventh-grade education and that she thought she was signing a receipt instead of a document by which she relinquished all rights to her baby.

“Elvie was misled, taken advantage of and deceived,” said her attorney, Jeri R. McKeand.

Jordan’s testimony came on the second day of an emotional trial involving three would-be parents--the father, his estranged wife and the surrogate they hired--all of whom want custody of the 10-month-old girl.

On Monday, Orange County Superior Court Judge Nancy Wieben Stock ruled that the estranged wife, Cynthia Moschetta, 51, had no parental rights to the baby even though she had mothered the child for six months before her husband left her and took the baby with him.

That ruling narrowed the controversial case to a two-way custody fight between Robert Moschetta, 35, the biological father, and Jordan, 42, the genetic and natural mother. The baby was conceived through artificial insemination and was born on May 28, 1990. The Moschettas named the baby Marissa; Jordan calls her Melissa.

Even before the pregnancy, Jordan testified, she had made it clear that she wished to give a child to an infertile but happily married couple.

In or around March of 1990, the divorced mother of three agreed to become a surrogate mother through the Surrogate Parent Program of Los Angeles, run by psychotherapist Nina F. Kellogg, who also testified Tuesday.

Before Jordan met the Moschettas, Kellogg approached her about bearing a child for a famous single man, but Jordan refused, saying that she would consent to give a child only to a couple, both Kellogg and Jordan testified.

Jordan met the Moschettas, decided they had a loving relationship, she said, and agreed to bear their child for $10,000. But when she was six months pregnant, Robert Moschetta told his wife that he was considering divorce. They consulted with Kellogg, who told them not to inform Jordan, who by this time was hospitalized with complications from her pregnancy, Kellogg testified.

On May 27, 1990, Cynthia Moschetta came to visit Jordan in the hospital and told her that her husband was leaving her.

“She broke into tears and told me she was sorry that my expectations were not going to be met,” Jordan testified. Jordan said she then announced that she would not allow the Moschettas to take the baby home from the hospital.

The baby was born the following day, and after intense discussions with Kellogg and the Moschettas’ lawyer, Jordan said, she agreed to let the Moschettas take the baby home on May 30.

However, Jordan testified, she imposed several conditions: that she would not consent to give her child up for adoption for at least one year; that the Moschettas attend marriage counseling during that period; that she would still be paid the remaining $5,000 owed her, and that she would be permitted to visit the baby at any time.

Through their attorney, the Moschettas agreed, Jordan and Kellogg both testified.

In cross-examination, the baby’s court-appointed attorney, Harold F. La Flamme, sought to show that Kellogg had strong-armed Robert Moschetta into staying with his wife and pressured Jordan into giving up the baby. Kellogg stated unapologetically that she had.

“It was clear that Elvie was very strong-willed and if her conditions were not met, she was not going to release the baby,” Kellogg said.

“Did you feel like you were sort of blackmailing him (into staying with his wife)?” La Flamme asked.

“Yes,” Kellogg replied calmly.

“Sort of holding a gun to his head?” La Flamme asked.

“Yes,” said Kellogg, adding that she wanted to believe that Robert Moschetta was sincere in his promises to try to make the marriage work.

Jordan did visit the baby once, but she testified that the Moschettas seemed threatened by her presence. They assured her, however, that their marriage was fine.

“When I went to visit them at their home, (Robert Moschetta) said everything was great and they were learning a lot about their marriage they didn’t know, and everything was going to be great,” she said.

In September, the husband called her and told her that the attorney would not pay Jordan the remaining $5,000 because “I hadn’t signed the papers,” Jordan testified. “I told him he had no reason to distrust me; if the marriage was working out, I would sign the papers.”

Jordan testified that Robert Moschetta later called her again and told her that he would pay her himself, and that she could pick up the money any time. She said she went to meet the Moschettas, took the check, and signed a document which she presumed to be some sort of receipt but which she did not read carefully.

The document surrendered all of Jordan’s parental rights and gave custody of the baby to Robert Moschetta alone. Six weeks later, he took the child and left his wife.

Robert Moschetta has previously said that he told Jordan what the document contained, that he offered to provide her with a lawyer, but that she freely chose to sign away her rights.

Kellogg testified that Robert Moschetta had asked the couple’s lawyer, Catherine M. Adams, to draft such a relinquishment, but Adams refused.

“She said she would not be a party to it because it would not be legal. . . . “ Kellogg said. “I concluded that he was trying to get the baby in a fashion that was not legal--at least I didn’t think it was legal.”

Attorney Adams is scheduled to testify as early as today.

According to La Flamme, who is retained by the county to represent children in contested custody cases, no adoption is legal unless the birth mother relinquishes her parental rights in the presence of a county social worker.

La Flamme has not taken a position on who should have custody of the child, and he declined to comment on whether he believed Jordan, who was never represented by a lawyer, had been deceived by the Moschettas, who both hold graduate degrees and had their own attorney.

But La Flamme did question whether Robert Moschetta was truly happily married when his daughter was conceived.

“It’s hard to believe that from November to April, the marriage went from wonderful to terminal,” he said.

Robert Moschetta is expected to testify later this week.