In the Child's Best Interest

A legal technicality sent Donnie and DeAnne Fitts to a Houston court seeking to adopt Justin and Jacob Baker - again. Twelve jurors agreed that outcome would be the best for the children. Judge Bill Henderson didn't quite see it that way.

After his visit to the agency, Blessed Trinity tried three times to serve a petition for termination to Brendon at his sister's house in Houston, where Brandi Baker told the agency her husband was living. Unable to present him the papers in person, the agency then went to court in Fort Bend County and won an order from Judge Thomas Stansbury permitting it to serve Baker by what is called "substituted service" through his sister. Baker's sister later claimed she didn't open the papers for five weeks. But the notice required an answer within three weeks, after which Baker's rights would be terminated by default.

There was a reason Blessed Trinity sought the termination in Fort Bend: among adoption agencies, the county is known as a more efficient, less costly venue for adoptions than Harris County. John McDermott, the lawyer for Brandi Baker, puts it another way: adoptions, he says, are "the cottage industry" of Fort Bend. Stansbury, who did not respond to a request to be interviewed for this story, sets aside each Friday exclusively for terminations and adoptions in his court.

As the termination went forward, Blessed Trinity still had to present evidence to Stansbury that there were sufficient grounds to strip Brendon of his rights, and that the termination would be in the best interest of the children. Brendon Baker failed to contest the action or show up in court for the hearing, and the termination was finalized on October 8, 1993. At the trial of his suit seeking to have his rights to the children restored, Brendon Baker would testify that during some of the time in question he was at his mother's home in Livingston or in Florida visiting his father, who was dying of cancer.

While the adoption agency did nothing illegal, Henderson clearly thinks Brendon Baker was wronged by the action in Fort Bend County.

"The biological dad told the agency he did not want to give up these children," Henderson says. "They went forward with the termination .... When you default [after] you have been told he was opposed to [the adoption], you have to expect he will fight it."

Yet 18 months passed between the time Brendon Baker first visited the adoption agency and sued to have his parental rights restored. Roger Chism, Baker's attorney, says his client looked for his children during that interval, but couldn't find them. Brandi Baker now claims she tried to hide Justin and Jacob from her husband and "played games" with him. For his part, Brendon Baker says he attempted to locate the children even when he was in prison. He didn't find out where his children were until June 1994, eight months after the boys went to the Fittses and about the time the adoption was finalized in Baylor County.

As Henderson suggests, his decision was somewhat more complex than it has been portrayed by critics. Nonetheless, under Texas law, a judge is not to disturb or overrule a jury's decision if there is any credible evidence to support it.

What Henderson did was to reverse the jury on its findings that Brendon Baker left the children alone or with others without providing adequate support for at least six months, that he engaged in conduct that endangered them and left them in endangering conditions.

And what the jury saw as sufficient evidence on these questions -- Brendon's positive drug test prior to the trial, his criminal record and his history of violence and failure to support the boys -- failed to sway the judge. Henderson was even unimpressed by the positive result of the drug test that he had ordered. It was only one drug test, the judge says, and there was no evidence presented that Baker had a history of drug abuse.

After the trial, Roger Chism also dismissed the drug examination, attacking its validity as well as the expert witness on its administration, Dr. Ernest Lykissa of Drug Labs of Texas, whom Chism calls "the most pompous ass you ever saw." (During the trial, Brendon claimed the "high level of consumption" of marijuana the test detected had resulted from his second-hand inhalation of smoke. More recently, he told the Press that "the tests are screwed up.")

Likewise, Chism and Henderson reject the characterization of Baker as prone to violence.

"You would have to listen to the testimony yourself and decide if he was a violent man," Henderson says.

Chism claims his client only engaged in shoving matches with his wife, "as married people often do."

In fact, the judge and Chism seem to view Brendon Baker pretty much as Brendon Baker portrays himself: as a victim. In an interview after the trial, Baker denied ever abusing Brandi or threatening his children. He said he has never smoked crack cocaine and never been in trouble for drugs. And it was his parole officer's fault, Baker says, that he had to go back to jail twice for parole violations. In both instances, Baker says, he couldn't get off from work in time to report to the parole officer, who had him arrested when he reported in several hours late.

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