Minnesota's first adoption malpractice case devastates parents
"Don't talk to me again,"Stacy Mooney found herself saying,"until she is 100 percent sure."
She was speaking to her boss at the Holiday gas station in Navarre. After trying desperately since 2002 to get pregnant, Stacy and her husband Ty had finally made the decision to adopt. Stacy was already feeling her motherly instincts welling up inside her. To even contemplate getting close and having it not work out was too much to bear.
It had taken Ty a long time to realize how much he wanted kids. He liked them, sure—he was crazy about his niece. But even after he and Stacy were married in Hawaii on September 27, 2001, Ty felt no rush to start reproducing. He was a young guy still, and his job at U.S. Airways gave him and his wife ample opportunity to travel the world.
Then Ty saw friends his age coaching their kids in youth sports and thought, look what I'm missing. Maybe that world travel they'd dreamed of could include a child. The year following their wedding, Ty and Stacy started trying to have a baby.
But it wasn't happening. They had tests done, and it still wasn't happening. So the Mooneys began talking about adopting.
The day her boss finally told Stacy that yes, his pregnant friend was sure, 100 percent sure, was September 1, 2006. Nine days later, the boss's wife came to the Mooneys' Elk River home with a twentysomething woman she introduced as Crystal Orr. Too early in her pregnancy to even be showing a baby bump, Crystal brought along the second of her three children to the Mooneys' ranch-style house.
The Mooneys made their guests dinner and gave them a tour of the house, including the nursery set up with a crib, toys, and other baby necessities. It was important to Stacy that Crystal know the child she carried would have everything a baby could want.
It was enough to convince Crystal. "I want you to have this baby," Stacy remembers Crystal saying. "This is your child. I'm just carrying her for you."
DANIEL L. GILES TURNS 60 this October. He'll mark his 30th year practicing law in 2009.
The bearded, mustachioed Giles is a partner in the Marshall firm Stoneberg, Giles and Stroup. The firm mainly advertises for personal injury cases, but they also handle business law, agriculture, estate planning, and real estate transactions.
It was the last of these that found Stacy Mooney's parents, Debs and Al, doing business with senior partner Paul Stoneberg. The deals had ended without a hitch.
So when Stacy told her parents that she and Ty had found a baby to adopt, they suggested she work with the law firm they'd trusted for years. The day after the Mooneys met with Orr for the first time, Debs and Al went to Stoneberg's office to ask if the firm handled family law. Yes indeed, Stoneberg told them, and introduced them to Giles.
They struck an arrangement. Giles would dispense all necessary legal advice and handle all the paperwork.
In the meantime, the Mooneys and birth mother Orr were becoming close. On September 21, 2006, the two women attended Orr's first medical appointment together, something that soon became a monthly ritual. The Mooneys offered to pay for any medical bills that insurance wouldn't cover, but Orr never asked for a dime.
Orr had her own reasons for wanting the adoption to go smoothly. She was involved in a custody case involving her eldest child. She wanted to avoid anything that would reflect poorly on her with the court.
In October, Orr and the baby's birth father ended their relationship, with the man planning to leave the state. Orr wanted to be certain he signed an adoption consent form before that happened.
Don't worry, Stacy assured her, we're on top of it.
On November 24, Stacy called Giles. They needed to get this man's consent, she told him—and don't we need an adoption agency to do some official study of our home?
No, Giles assured her. You don't need a home study for this type of adoption.
That seemed odd to Stacy, but she took him at his word.
Of the types of domestic adoption available, the route the Mooneys chose is the most modern, but also potentially the trickiest. When an expectant mother and an adoptive couple connect on their own, then go to a lawyer for a binding agreement, legal hurdles exist that other forms of adoption bypass. Called "direct placement" adoptions, these agreements have only been recognized by Minnesota's law since the early 1990s.
Before that, says adoption law expert Gary Debele, state government and adoption agencies handled virtually all the arrangements. A couple could either adopt a ward of the state—usually a child whose parents' rights had been revoked—or go through an adoption agency. The process was overseen by professionals and cloaked in secrecy. Birth parents never knew who adoptive parents were and vice versa. Social workers made decisions about where children would be placed.
But there was a backlash. Agencies realized secrecy might not be best from a child-development perspective. Demographics were also changing. With social taboos about single parenthood diminishing, more birth mothers began keeping their babies.
The new adoption procedures require a more specialized knowledge of complex laws. "Very few family law attorneys will do adoptions anymore, because the law has gotten quite complicated," says Debele.
In November 2006, the Mooneys knew none of this. But they did know that, after the first mention of a home study, the next month saw more progress. Stacy met the baby's biological father at Klein Bank in Buffalo to have him sign consent forms, which she then sent to the law firm via UPS. Mission accomplished, one more item checked off the list.
On December 7, Stacy found out that Crystal Orr was having a girl. They attended the ultrasound appointment together. Ty didn't want to know the baby's gender, but Stacy couldn't wait to find out. They decided to call the little girl "Rylee Ann" because Stacy and Orr shared "Ann" as a middle name.
Still, there were nagging doubts about the process. The Mooneys were skeptical, but deferred to the expert. "If someone comes in the airport for an airline ticket, I can tell them whatever I want, because I know my job and they don't know [anything] about flying," says Ty, who works in customer service for U.S. Airways. "He could've said anything and we would have said, 'Okay, this must be right.'"
With Crystal due to deliver in less than two weeks, the Mooneys thought they had completed all the necessary paperwork. They'd certainly done all Giles asked of them—even when he called Stacy on March 31 and suddenly announced that they needed a home study.
Stacy was livid. "I asked you about this multiple times!" she told him. In a panic, Stacy scrambled to get the study done in the extremely short window of time before the birth. She got nowhere at first, but eventually found Adoption Minnesota, which agreed to perform the required two studies.
Ty and Stacy breathed a sigh of relief. Perhaps it would work out after all.
AT 2:40 P.M. ON APRIL 9, 2007, Stacy Mooney snipped the umbilical cord that connected lit- tle Rylee Ann's belly to Crystal. After more than five years of trying, Stacy and Ty were finally parents.
They were surrounded by dozens of family and friends who'd made the trek to Monticello-Big Lake Hospital, including Stacy's pregnant-and-glowing younger sister, Katie. Their daughters would be the same age, Katie pointed out, and would grow up playing together.
Although Ty had initially wished for a son, as he cradled his daughter for the first time, the boyish 35-year-old who hoped to coach his child's youth sports team felt his heart transformed.
"I held her," he recalls, "and I looked at her and said, 'I will do everything in my power the rest of my life to take care of you and to protect you.' I know she didn't understand what I was saying, but that was the first thing I ever said to her."
Still aglow with parenthood, Stacy called Giles. He'd fax over the paperwork that would allow the Mooneys to leave with the baby, he said. In the meantime, Stacy returned to the room she'd reserved at the hospital. Stacy's father bottle-fed Rylee, giving the little girl her first meal in the world.
The beaming couple planned to leave the hospital the next day. That afternoon, though, a social worker told them the paperwork was incorrect.
That's odd, Ty thought. Hadn't they been working on this since September? They had answered every question, signed every document, submitted to every background check. There was the home study yet to complete, sure, but weren't they taking care of that?
In short order, new paperwork arrived on the hospital's fax machine. The attorney had obtained 60-day temporary custody, enough for Rylee Ann to go home with the Mooneys. Orr signed the agreement and the Mooneys left with their newborn daughter.
STEPHANIE TUOTT KNEW she'd be friends with Stacy Mooney as soon as the two families moved in across the street from each other in 2005.
She was equally sure Stacy would make a fantastic parent. Just two months after they'd met, Stacy was showing her neighbor the baby room. Packed with stuffed animals and gear for infants, the place looked half toy store, half baby product emporium.
"Strollers, clothes...you name it, she had it. It was so cute. I said, 'You could take a baby today, and you'd be set for the first two years,'" Tuott says, holding her one-year-old daughter Eden as she tells the story.
Tuott knows plenty about parenthood. She and husband Aaron have five girls of their own, and Stephanie is four months along with number six, which will either give them a full volleyball team or their first boy.
Stacy felt an immediate kinship with the Tuott girls, the oldest of whom is seven. Whenever she visited a garage sale, Stacy would buy them stuffed animals, toys, and other trinkets.
Stephanie and Aaron began praying for the Mooneys to be blessed with a child. "Please, God, she'd be the perfect parent," Stephanie recalls wishing, and when Rylee Ann was born, "it was the answer to a prayer." The two women cried together. "This is it!" Stacy said.
"It" included an utter absence of sleep and innumerable other child-rearing stresses. Does Rylee want to be burped, or held, or...what? Should I feed her now? Why does she always get up right at 3 a.m.? Stacy had done all the research, but there's no substitute for firsthand experience.
The new mom was quick to solicit counsel from the old hand across the street. If Stephanie was away at Living Word Christian Center in Brooklyn Park, Stacy would anxiously watch for the house lights to flip on so she could call for advice.
But there were challenges coming that even Stephanie couldn't solve.
STACY FRANTICALLY KNOCKED on Tuott's door May 17, 2007, a spring day warm enough to go barefoot.
Stacy had gotten a call that morning from Heather, the birth mother's sister. Heather wanted to meet at the park to see Rylee Ann. "Come at four, and bring a stroller," Heather had told her. They could make an extended family day out of it.
Stacy had bathed Rylee Ann, toweled her dry, and begun her afternoon feeding when the phone rang at 3:30 p.m.
It was Giles. The lawyer was calling, he said, to make sure that Stacy was on her way to give Rylee Ann back to the birth mother—for good. Crystal had decided to remove her from the Mooneys' home, and if Stacy didn't have that baby to the park in 30 minutes, they could have her arrested and charged with kidnapping.
"That can't be right," Stacy said. "This can't be happening."
Orr had visited the courthouse and after looking at the paperwork became convinced the adoption had been handled improperly. She wanted to reclaim the child and start a new process fresh with another family. Giles was insistent: Stacy would go to jail if she didn't return Rylee Ann.
Tuott didn't even take the time to put on shoes. "I'm not letting you do this alone," she said.
They strapped Rylee into her car seat and drove the five miles to Orono Park, Stacy in shock, Stephanie's head spinning.
Stacy unbuckled Rylee Ann. Held her close one last time. When the birth mother's sister took the baby, Stacy asked, "Why are you doing this?" There was no answer as the two women loaded the infant into the car.
Tuott, whose mother had adopted three children, told Stacy to get legal counsel. "I remember saying, 'This totally does not sound legal. Are you sure you're supposed to be giving this baby up right now? You should call someone.'"
Stacy was frozen, unable to speak. Don't you see? she thought. We already did.
THE MOONEYS' EXPERIENCE is behind the first ever adoption malpractice suit filed in Minnesota, and Patrick Burns, their new attorney, is pursuing the claim against Giles.
Michelle McDonald, an adoption attorney employed by Burns as an expert witness, found that Giles made "mistakes and careless errors" that numbered "too many to list" in a five-page report.
Among the snafus: offering to pay for the birth mother's medical appointments is actually illegal. Also, parental consent forms—the kind Giles prepared for the birth father—may not be signed until after the baby is born. Some of the forms that were completed were improper, the lawsuit alleges, but most of the paperwork just never showed up at all.
"He did nothing," Burns says of Giles. "These adoption statutes are procedural, mechanical. The law is very unforgiving if you don't follow the procedures. And as far as we can tell, he didn't follow any of them."
Despite his background in family law, it's unclear whether Giles has ever handled an adoption. No evidence exists that he has, but because the records are generally sealed in adoption cases, it cannot be ruled out. Through his attorney, Giles has refused multiple requests for an interview. A response brief filed with the court by Giles's attorney denies the majority of the allegations.
No local precedent exists for this case, but judgments against attorneys for bungled adoptions have reached into the millions in other states. The largest award, from Rhode Island, was $3.8 million.
Ty Mooney isn't thinking about money, though. It frustrates and confuses him that he never received an apology from Giles—indeed, never met the man in person. "He could walk into this house right now and I wouldn't know who he is," Ty says.
Rylee has been permanently adopted into a new family, but Ty still sometimes wakes up at 3 a.m. That's when Rylee always cried to be fed. In that dark hour, he thinks back to that first promise he made to his daughter. Softly, almost inaudibly, he says, I failed. But I should have had the chance to fail on my own. He made me fail.
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