An adoptive couple says their son would still be alive today if their lawyer had done his job. Now they’re weighing up their options.
On Tuesday night, four-month-old Gabriel McFarland died in his biological father’s care. The 17-year-old father is now facing neglect charges.
Heidi McFarland doesn’t know what she will do next. The baby she and her wife, Rachel, were trying to adopt was taken back by the biological mother 10 weeks after they believed they had custody.
Baby Gabriel, was found dead less than a month later.
The McFarlands believe if their lawyer, Jason Rieper, had filed paperwork terminating the biological mother’s rights in a timely fashion, Gabriel would still be alive.
Drake legal clinic executive director Jerry Foxhaven says Rieper should have filed that paperwork immediately.
“You get a consent from the parents to release custody and to give it after a very short period of time you can’t revoke it except for good cause. You know that you can’t adopt until you terminate the parental rights. You do that with the consent of everybody. And then get on with the adoption,” Foxhoven says. “Delay isn’t helpful to anybody.”
While the state bar association says lawyers have to act with diligence and promptness with their clients cases, chances are Reiper will not be disbarred or sanctioned for what appears to be poor handling of the case.
According to online court records, he was charged in 2001 with child endangerment and an order of protection was issued but he has never been disciplined by the Iowa Supreme Court.
“You can’t neglect cases. If it’s a single event, typically it’s not an ethical issue. It’s a legal liability issue and you may be sued for malpractice and that’s what we have insurance for. If it becomes a pattern, that’s when the ethics commission gets involved,” Foxhaven explained.
The McFarlands could sue Rieper and they say they probably will. But right now money is tight. They have spent $18,000 on legal bills and adoption costs. Heidi, who is not working right now, had to cash in her retirement just to pay the bills.
But most of all, they aren’t ready for more court fighting. Right now they just want to mourn their son.
“I have to stay positive to keep going. My family needs me. Rachel needs me. Our friends need us. And I’m trying to be the bigger person. I’m trying very, very hard. God knows it’s hard,” Heidi said.
Rieper has declined to comment, citing confidentiality between himself and his clients. He also said he may be called as a witness in the criminal case against Gabriel’s biological father.
The 17-year-old father, Drew Weehler-Smith, is charged with neglect, but more charges could be added once the autopsy results are complete.