Adoption Battle Raises Painful Questions : Families: San Diego case is the first under a state law giving unwed fathers more clout in custody fights.

Michael, who is 2 1/2 years old, loves to play with his plastic dinosaurs and splash in his back-yard wading pool. He laughs a lot.

He and 4-year-old J.T. are best buddies except when, in that classic pattern of young brothers, they begin squabbling over a toy.

If either boy needs help or attention, he cries out for mommy or daddy, and Peggy and John Stenbeck are there. Michael and J.T. appear happy, healthy and secure.

But because of a major shift in California law, Michael may soon be taken from the Stenbecks and given to his biological father, a high-school dropout with a history of alcohol and drug abuse who was 21 when he impregnated Michael’s mother, then 15. The new law gives unwed fathers who quickly declare an interest in raising their children an advantage over adoptive parents in custody battles.

The Stenbecks, who met at a church dance and have been married for 11 years, are unable to have children and thus turned to adoption. The adoption of J.T. went smoothly, but the adoption of Michael, despite his birth mother’s blessing, has become a legal nightmare.

The tug-of-war over Michael has received none of the national attention given to the case of 2 1/2-year-old Jessica, who was taken this week from her adoptive parents in Michigan and given to her biological parents in Iowa. Still, Michael’s case involves the same heart-rending emotions and agonizing societal questions about balancing a father’s rights against the best interests of a child.

Since it is the first case to go through the legal system under a change in the law brought on in 1992 by the California Supreme Court, Michael’s case may also set legal precedent for other confrontations between unwed fathers and adoptive parents.

The legal fight has taken an emotional toll on both sides.

“If I didn’t have my faith, my family and my friends, I’d be a basket case,” said Peggy Stenbeck. Her husband said he has “bouts of depression and tears at work.”

Mark King, Michael’s biological father, said he feels “like someone has wrapped a fishing line so tight around my chest that it has cut my heart in half.”

In two weeks the case will return to San Diego Juvenile Court Judge Michael Wellington, who has already ruled that because of King’s objections, the Stenbecks should not be allowed to adopt Michael.

This time, Wellington will decide whether Michael should remain with the Stenbecks or be sent to live with King while a higher court hears the Stenbecks’ appeal of Wellington’s adoption ruling.

The Stenbecks say they fear for Michael’s well-being if he is removed from the only home he has ever known. “Michael would become a broken child,” said John Stenbeck. “It would be like taking a hammer and smacking a mirror. The pieces may all stay in the frame but they’re shattered.”

King said the Stenbecks are unfairly portraying him as a monster and that he has been clean of cocaine, marijuana, methamphetamine and alcohol for nearly three years, an assertion his boss backs up. “People can change,” King said. “If they want something bad enough, like I want Michael, they can change.”

For three months he has been working as a $5-an-hour truck driver in San Bernardino so he could be close to San Diego for his twice-monthly, court-approved visits with Michael, which are closely supervised by the Stenbecks. Michael knows King only as a man who occasionally meets the family at the beach or a park.

After the Aug. 20 hearing, King plans to return to an $8-an-hour assembly line job in a window-frame factory in his native Prescott, Ariz., where he has rented an apartment, stocked it with toys, and arranged for friends and relatives to serve as baby-sitters.

King’s boss came to San Diego to tell the adoption case judge that King is a hard-working employee with a good future with the company. And since dropping out of school, King has gotten his high-school equivalency diploma.

The Stenbecks are horrified at the thought of Michael being taken to Prescott and exposed to King’s family and friends. A court-appointed psychologist said King came from a “dysfunctional, alcoholic family” and that his mother has an “unstable lifestyle.”

“Mark is going right back to the place where he was doing his drinking, doing his drugs, right back into the family model that works that way,” John Stenbeck said.

King replied that, like any loving parent, he will shield his son from any bad influences, including from his own family if they are mistreating Michael or behaving “loud and rude.”

“Millions of other single parents raise children,” he said. “Who says I can’t do it?”

Michael is the product of the short and stormy relationship in 1990 between King and a girl named Stephanie. She said he plied her with liquor to get her to consent to intercourse. He says she was the sexual aggressor and that he showed restraint by waiting until her 15th birthday to have sex.

At first King agreed with Stephanie that their unborn baby should be adopted by the Stenbecks, who knew her family. Then King and Stephanie had a fight that left Stephanie with bruised arms and King under arrest, although the charge was later dropped.

King tried to commit suicide and while recuperating in a hospital decided he wanted to adopt the child Stephanie was carrying. Stephanie fled from Prescott to San Diego and lived with the Stenbecks until she gave birth at a hospital Feb. 21, 1991.

The Stenbecks own a modest, older home with a large back yard on a tree-lined street. Toys are strewn about the family room; a sign on the wall says “We Are a Family.” A remodeling job has been halted because of mounting legal bills.

Peggy, 33, sold insurance but now stays home to care for Michael and J.T. John, 35, sold real estate but shifted to a different profession so he did not have to disrupt his family life by working nights and weekends.

Making the legal case even more complex is the fact that Stephanie, now 18, has said that if the Stenbecks are not allowed to adopt Michael, she will reassert her parental rights in an attempt to keep King from getting custody. That would set off additional legal rounds.

Until last year, California law was crystal clear in cases where an adoption was being contested by an unwed father. Judges were instructed to act in the best interests of the child.

In fact, Juvenile Court Judge Lisa Guy-Schall in October, 1991, approved the Stenbecks’ adoption petition and rejected King’s request for custody under the best-interests standard.

But while King’s court-appointed attorney was appealing that decision, the California Supreme Court, in a Sherman Oaks adoption case involving a little girl known as Kelsey S., turned the world of adoption law, and the Stenbeck family, upside down.

The state high court ruled in February, 1992, that in cases where an unwed father contests an adoption arranged by the mother, the father should receive custody if he can prove that he came forward and offered “a full commitment to his parental responsibilities--emotional, financial and otherwise” as soon as he learned of the pregnancy.

The Kelsey S. case, in effect, replaced the best-interests standard with one that stressed the unwed father’s civil rights, a victory for the fathers-rights movement.

Citing the Kelsey S. decision, the appeals court in San Diego in August, 1992, sent Michael’s adoption case back to Juvenile Court, with the heavy inference that King had met the new standard of having offered a sufficient and timely commitment.

Doug Donnelly, the Santa Barbara attorney who represents the Stenbecks, was particularly furious at a suggestion by the appeals court that, in evaluating King’s actions as a father, the court should give him credit for the efforts he has made to straighten up.

“In other words, a suicidal drug addict has a lesser burden of proof to show diligence (of parenthood) than someone who is not a suicidal drug addict,” Donnelly fumed.

In February of this year, Juvenile Court Judge Wellington agreed with the appeals court and ruled in King’s favor, a decision the Stenbecks promptly appealed.

Wellington said the Stenbecks had provided Michael with “excellent, experienced and loving care” and that it is “a cruel twist of fate that we are now considering separating them.” He said, however, he was bound by the Kelsey S. decision.

Donnelly believes King has not met the Kelsey S. standards because of his lack of emotional stability, his lack of financial support for Stephanie, and his early approval of the adoption. King’s attorney, Monica Vogelmann, disagrees, noting that King tried to get custody in Arizona within days of the birth and pursued custody with a vigor rarely found in unwed fathers.

Vogelmann supports the Kelsey S. ruling because she believes it begins to give unwed fathers some of the same rights as unwed mothers: “I don’t think in America we are in the business of taking children away from parents and giving them to ‘nicer’ homes. That’s what they did in Nazi Germany.”

Robert Fellmeth, law professor at the University of San Diego and director of the Children’s Advocacy Institute, disagrees with Vogelmann and thinks the Kelsey S. decision is dangerous. He says that, in the name of fathers’ rights, courts have regressed from a paternalistic attitude of protecting children to the 19th-Century view that children are property.

Fellmeth, who does not have a direct role in the case, hopes for legislative action to restore at least a modified version of the best-interests standard, possibly next year. So do the Stenbecks and the leaders of two organizations of adoption attorneys.

But the only bill in Sacramento to clarify the Kelsey S. decision would broaden rather than restrict fathers’ rights. Authored by State Sen. Charles Calderon (D-Whittier), the proposed legislation would give unwed fathers up to 90 days after the birth to begin showing concern and thus get custody. The Kelsey S. ruling requires that such concern be shown as soon as the pregnancy is known.

The Stenbecks have gathered 500 signatures in opposition to Calderon’s bill and traveled to Sacramento to testify against it. The bill is set to be heard by a subcommittee of the Senate Judiciary Committee on Aug. 17.

The Stenbecks say their legal bills are approaching $50,000. As a middle-level manager at Price Club, John Stenbeck makes $30,000 a year. King’s attorneys are paid by the state because he is legally indigent and his parental rights are at stake.

King, 24, calls what the Stenbecks are attempting a legal kidnaping. “There’s very few times in the day when Michael is not on my mind,” King said.

He denies that he only wants to get custody of Michael in order to be reunited with Stephanie, although he keeps her picture and says he still loves her.

As devout Catholics, John and Peggy Stenbeck say they pray for King’s continued progress but they do not want Michael put at risk. They say they are prepared to appeal to the Supreme Court.

Already they feel Michael has been harmed. He has regressed with toilet training and returned to drinking from a bottle.

The Stenbecks also fear that J.T. will be traumatized if Michael leaves and may fear that he, too, will be sent away forever. And how will the family react if Michael is taken away?

“If we lose Michael,” John Stenbeck said, “it will be as painful as the death of a loved one.”