ADOPTING AN ATTITUDE
The Colorado Supreme Court told him to get with the program. The publicity of a family sex scandal put his potential for personal bias in the spotlight.
But one year later, critics say Denver Juvenile Court Presiding Judge Dana Wakefield has found another way to stonewall the state law that helps adoptees and their biological parents find one another.
The judge, however, denies he's stalling attempts to implement the program.
The Colorado Confidential Intermediary Statute allows adoptees, their adoptive parents or their biological relatives to petition the courts to appoint investigators--confidential intermediaries--to open sealed adoption records. Acting as a neutral third party, the intermediary then attempts to establish contact with sought-after relatives and, if successful, ask if a meeting with the petitioner is acceptable. If it's not acceptable, the case is closed.
The statute was passed overwhelmingly by the Colorado Legislature and signed into law in January 1989. But while judges in other districts began appointing confidential intermediaries almost as a matter of clerical routine, Wakefield, who had not yet been appointed presiding judge, refused, saying he believed that the law violated the privacy of birth parents.
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In arguing against the law, Wakefield pointed to a scandal involving the statute's creator, a minister named Richard Adkins who used the statute to find his birth father. At the same time, Adkins, who was married, met his half-sister and began a sexual relationship with her that ended when she became pregnant.
Wakefield contended that the Adkins affair demonstrated the dangers inherent with the law. He would later claim that a sex-and-adoption scandal involving his own father had nothing to do with his stance. But with so little other opposition, advocates wondered why the judge was so vehemently opposed to the program.
After a drawn-out series of hearings, Wakefield declared the law unconstitutional on January 10, 1992. Judges in every other county continued to appoint intermediaries, but all Denver Juvenile Court judges stopped.
Then, in April 1993, the Colorado Supreme Court ruled that the confidential-intermediary law was not unconstitutional. In an unusually harsh criticism of a judge, the high court blasted Wakefield's "impermissible exercise of judicial authority" and wrote: "The juvenile court raised an issue on behalf of unidentified parties that were not before the court on its own motion in order to create a controversy that it then proceeded to decide."
Despite the ruling, Wakefield still delayed appointing intermediaries for any of the 350 cases on hold in the Denver court. Other Denver judges slowly began making appointments, but the bulk of those waiting were held up because of Wakefield's opposition.
In September 1993 attorney Patricia Dean, whose client's petition for a confidential intermediary had been used by Wakefield as the high court's test case, finally grew tired of waiting. Dean went to Wakefield and told him that she had learned of an incident that could be affecting his judgment.
When challenged by Dean, Wakefield claimed that he did not know that some 47 years earlier his father, a high school principal, had impregnated a teenage family babysitter with whom the father had carried on a two-year affair. The judge's father persuaded the girl to give up the child, who was born four months after the future judge.
In 1989 the former babysitter located the daughter she gave up for adoption. The two then attempted to meet with Wakefield's father; when he refused, they told Wakefield's mother.
A couple of years later the babysitter read in an adoption-services newsletter of Wakefield's ruling against the confidential-intermediary law. She contacted officials with the Colorado program about Wakefield's potential conflict of interest.
Dean told the judge that he should remove himself from her case and any others because of the possibility of personal bias.
A few days later Wakefield told Dean that he learned of the family scandal only after calling his parents following his conversation with her. He said he would withdraw from her case and would disqualify himself from any others.
Learning from Dean that Westword was researching the story ("Family Lies," October 6, 1993), Wakefield contacted Carol Kreck, a former girlfriend who reports for the Denver Post. Later conceding that he was trying to do "damage control...not for myself, but for my parents," Wakefield's explanation in the Post story was that the embarrassment suffered by his parents was exactly why he opposed the Colorado law.
Of course, neither the Post story nor the judge pointed out that the mother and daughter didn't have the option of a confidential intermediary. They had done their own detective work and made direct contact--and such direct contact is the reason the Colorado Confidential Intermediary Statute was created in the first place.
Wakefield said he was disqualifying himself from presiding over any confidential-intermediary cases in part because he wanted to "work outside the courtroom to change the law."
Last week Wakefield told Westword that he hasn't done anything inside or outside the courtroom to oppose the statute.
But critics such as Carla Schuh, the executive director of Colorado Confidential Intermediaries Services, say the judge has continued to oppose the law through his position. CCIS is a nonprofit corporation formed in 1990 by Adkins to train investigators and administer the program.
Following the high court's ruling, petitioners like Ken Yarcho believed they would soon have the opportunity to get answers to the questions they had about their heritage.
Eleven years ago Yarcho decided he wanted to meet his birth mother.
"I've always known I was adopted," he says. "I was `Mommy's and Daddy's precious adopted baby boy.'" But it wasn't until he had kids of his own that he felt the need to fill the void in his past.
In 1983 Yarcho signed up with the Colorado Adoption Registry. The registry allows adoptees and birth parents to locate each other. The trouble is, both sides had to sign up and, being poorly publicized, the program did not have a high success rate. Yarcho heard nothing.
When the confidential-intermediary statute passed, he believed that he could now participate in an active search for his birth parents through a neutral third party. He was in his late forties and, although physically fit, he had begun to wonder if there were any hereditary health problems he should be concerned about.
Wakefield's ruling that the statute was unconstitutional dampened Yarcho's enthusiasm, because he knew that the court wrangling could take several years. He was pleased when the high court overturned Wakefield's decision.
"The legislature passed the law, the Supreme Court upheld it," Yarcho says, "I didn't know that a single judge had the power to refuse to go along with it just because he didn't like it."
In July 1993 the Denver court appeared to be making an attempt at compliance when it gave fifty names of petitioners to Colorado Confidential Intermediaries Services.
CCIS collected the $400 fee from 48 of those people and appointed intermediaries to begin the searches. The two other people made arrangements to pay on a schedule. It is a rule of the program that petitioners must cover the costs before an intermediary can be appointed.
Schuh says her agency thought it would shortly receive another list of names.
There was only one problem: A few months after the scandal broke last fall, Wakefield was appointed presiding judge of the juvenile court. As such, he controls the flow of paperwork at the court.
Schuh says that now only one woman has yet to pay the fee and be assigned an intermediary. But when CCIS officials asked for a new set of petitioners, they were told by court administrators that there would not be another set until all fifty petitions from the first set were assigned. Everyone else would just have to wait.
On October 3, after nearly a year of trying to get an answer and following several days of angry, repeated--and unanswered--telephone inquiries to Timothy Turley, the director of court services, Yarcho received a letter from Vivian Grant of the Denver Juvenile Court Adoption Department. Grant wrote Yarcho that the process would repeat itself as soon as the first fifty people had been assigned.
"You may wish to write to Presiding Judge Dana Wakefield regarding any concerns with procedure," Grant wrote.
A year after Wakefield disqualified himself, Yarcho believes that his search could be delayed several more years at this rate. "There seems to be no end to the ways the court can drag its feet," he says. "I think Wakefield's goal is to stop the program. The law is effective and speedy in the whole rest of the state, everywhere but Denver."
Wakefield insists that the court is prepared to send fifty more petitions as soon as the first are all assigned.
"I assume they haven't assigned all of them because they don't have enough intermediaries," he says, adding that he has not been told that the holdup ostensibly was because one woman had not paid. But Schuh says CCIS explained the situation in a letter to Wakefield last month; it has yet to receive a reply from him.
She says CCIS intends to appoint an intermediary for the woman who is still making payments to see if that will speed up the process--but Schuh isn't holding her breath.
"If he tells the clerk that the confidential-intermediary program is the last thing on her list of things to do, they'll never get to us," Schuh says. "We have confidential intermediaries ready to take on new assignments but no names.
"This isn't some hangup about `assigning' cases. This is personal on Wakefield's part. It isn't fair, and I think it's criminal.
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