Attorney who owns adoption agency cannot also represent birthmother's best interest

Parents blame lawyer in adoption controversy
Wolfson, Andrew. Louisville Courier-Journal, Feb. 12, 2006, pg. A1.

It was an adoption nightmare.

For his first 18 months, the boy born in April 2004 lived in Wisconsin with his adoptive parents, who called him Hayden Alan.

Then a jury and judge decided he belonged with his biological father, who had been deported to his native Egypt for overstaying his visa. The father called the boy Yousef.

The situation was devastating for both sides.

"As far as we are concerned, he is still our son," said adoptive mother Tammy Shallberg of Sun Prairie, Wis., "and he will always be part of our family."

The biological father, Khalid El-Shazly, is furious that he missed out on the beginnings of his son's life. "It was like part of me was missing," El-Shazly said in an e-mail from Egypt, where Yousef has been since November 2005.

El-Shazly, who has filed a lawsuit, blames Louisville adoption attorney Carolyn Arnett who represented the child's mother and owns the adoption agency that placed the baby.

El-Shazly alleges in the suit filed in U.S. District Court that Arnett's dual roles created a conflict of interest that she pressured the baby's mother into going through with the adoption and instructed her to keep the father's identity secret from the court so her agency could collect a $6,000 fee when the adoption went through.

The child's mother, Amanda Goebel of Newport, makes the same allegations in a separate suit in Campbell Circuit Court.Arnett has denied any wrongdoing. "I would be doing myself a huge disservice if I ever forced a birth mother to go forward with an adoption against her will," she said.

Arnett contends that El-Shazly, who lived in Northern Kentucky, lost his child because Kentucky has "bad laws" that provide little protection to fathers.

Unlike most states, including Indiana, Kentucky has no registry allowing men to sign up with the state to be notified if a woman they've had sex with seeks to place a child for adoption.

Kentucky also allows a mother to terminate rights to her child without naming the father.

The General Assembly has failed at least twice to enact a registry law, most recently in 1998, said state Rep. Rob Wilkey, D-Scottsville, who sponsored the measure then and said he might revisit it because of cases like this one.

Louise Graham, a University of Kentucky professor who teaches family law, said the courts and legislature need to "craft whatever rule is needed to avoid these cases. If the baby in this case suffers no adverse psychological consequences, then we are lucky."

Lawyer's role questioned
Arnett, who founded Adoptions of Kentucky in 1995, said other lawyers jokingly call her "The Terminator," for terminating the parental rights of hundreds of birth mothers who gave up their babies for adoption.

She said she represents only birth mothers, but questions about her dual roles have arisen before.

Last spring, for example, a lawyer in a Campbell County adoption case, Beth Albright Louis, said she had filed a bar complaint against Arnett for allegedly representing multiple parties. Arnett said she did nothing improper but withdrew as the birth mother's lawyer after Louis objected. Kentucky Bar Association counsel Cary Howard declined to comment.

El-Shazly, 33, and Goebel also have filed bar complaints against Arnett, according to their lawyer, Shane Sidebottom. Sidebottom said Goebel, 26, wouldn't comment.

Kentucky law doesn't prohibit an attorney who owns an adoption agency from representing mothers of babies it places for adoption. But Jefferson Family Court Judge Patty Walker FitzGerald said she doesn't think it is a good practice, and Joan Byer, also a family court judge, questioned whether it passes "the smell test."

Elizabeth Samuels, an associate professor of law at the University of Baltimore who is an expert on birth parent rights, said "it seems quite obvious there is a conflict there," because an agency's interest is in having a child placed for adoption, while the job of an attorney representing the biological parent is to ensure she is "making that decision freely."

Mother's allegations
Goebel said she was estranged from El-Shazly, pregnant and depressed when she called Adoptions of Kentucky in December 2003 to ask about giving up her baby. She says a receptionist told her she needed her own lawyer and referred her to Arnett.

Goebel claims Arnett never told her she owned the agency, nor that it stood to collect a fee from the Wisconsin couple seeking to adopt her child.

"I represent only you in this matter," Arnett wrote to Goebel shortly after being retained.

But Goebel contends that when El-Shazly resurfaced and tried to find her before the baby was born, Arnett told her to hide from him and to continue a domestic violence order against him, even though she was no longer afraid of him.

According to letters filed in court, Arnett warned Goebel that if she backed out of the adoption, the adoptive parents could sue her to recover expenses that they'd paid her while at the same time she told the Wisconsin couple that they'd have virtually no chance of successfully suing her if the adoption fell through.

Goebel also alleges Arnett instructed her to falsely tell the court she'd been raped so El-Shazly's rights would be terminated.

Eight days after the baby was born in Campbell County, when Goebel's rights were terminated, she told a Jefferson Family Court judge that she didn't know who the father was.

El-Shazly eventually found Goebel, and they were married. On Sept. 14, 2004, Judge FitzGerald awarded custody of the child to El-Shazly, under a Kentucky law that allows a father to assert custody within 60 days of his child's birth.

But by then, the baby already was living with Tammy Shallberg and her husband, Keith Holmes, who for months fought vigorously in Wisconsin courts to keep him.

In May 2005, a jury ruled 11-1 in El-Shazly's favor, and eventually, Shallberg and her husband agreed to surrender the baby on the condition that they get to visit him in Egypt.

In November, the toddler was flown to his father in Cairo.

Lawyer denies claims
In an interview, Arnett said she told Goebel that she owned Adoptions of Kentucky and that Goebel signed a statement acknowledging that.

Arnett said she told Goebel to maintain the protective order against El-Shazly because she claimed to be afraid of him. And she said the letters she sent to Goebel and the adoptive parents were routine, factual and "complementary" not contradictory. She also denied instructing Goebel to tell the court she'd been raped, or that she didn't know the father.

The American Academy of Adoption Attorneys, of which Arnett is a member, says in its code of ethics that "a member shall not possess a financial stake in the success of any adoption in which the member is retained as a counsel for any party."

But its president, Martin Bauer, of Wichita, Kan., said that rule was designed to bar adoption lawyers from being paid on a contingency basis.

He said conflicts of interest don't arise in most adoptions because both sides generally have the same interest to place a child in a loving family. He also said a lawyer who owns an adoption agency can ethically represent a birth mother as long as the ownership is disclosed.

Bauer added that it is extremely rare for a child to be returned from the adoptive parents to the birth parents for any reason; if there is a question about placement, it usually arises before the child is taken from the birth mother.

Tammy Shallberg said the loss of Hayden Alan, her first child, was devastating.But in a phone interview, she said she blames only Goebel not Arnett.

Shallberg said she and her husband had their own lawyers, and that Arnett made it clear she was representing only the birth mother. "Yes, she had a financial interest in the adoption going through," Shallberg said of Arnett. "But why would she stake her entire reputation and career on one adoption?"

Shallberg said she and her husband have since had twins, but they still display pictures of Hayden Alan around their house and hope to visit him soon.

El-Shazly, a sales and marketing manager for a Cairo-based media agency, said it was difficult at first for Yousef to adjust."But he is getting used to me and his new surroundings," said El-Shazly, adding that he hopes to return to the United States and rejoin his wife some day. "He loves to play with his cars and trucks."

"I would be doing myself a huge disservice if I ever forced a birth mother to go forward with an adoption against her will." Lawyer CAROLYN ARNETT, who has denied any wrongdoing.