COMPLICATED CUSTODY CASE CROSSES BORDERS

A Canadian mother says her Canadian son should be with her, not in
the Oregon foster care system

Lisa Kirkman said she will do anything to get her 11-year-old son back.

"I'll dance with a chicken on my head if I have to," the Calgary,
Alberta, resident said.

That's probably not what Lane County Juvenile Court Judge Kip
Leonard, or anyone else involved in this strange and complicated
international child custody case, has in mind, however.

Nonetheless, Kirkman, 34, is making increasingly public and dramatic
efforts to retrieve her son, Noah, a Canadian citizen who has been
living in Lane County foster homes for the past 1 1/2 years under
supervision of the state Department of Human Services.

Kirkman said she came to Lane County from Canada on a visit in the
summer of 2008 and left Noah in Oakridge with the boy's stepfather --
Kirkman's husband -- for a vacation. John Kirkman is not the boy's
biological father or legal guardian but is "the only father Noah has
ever known," Lisa Kirkman said.

Oakridge police kept spotting Noah, then 10, on the streets that
summer -- trespassing at the city's industrial park, sitting alone on
a fence that had been knocked down, riding his bicycle without a
helmet -- and drove him home a couple of times, police chief Luis
Gomez said. Seeing a pattern, police referred at least two incidents
to the DHS, Gomez said. And DHS took custody of the child.

Since then, Noah, who turns 12 in March, has remained in Lane County,
bouncing from one school and state-paid foster family to another, his
mother said. All that time, she has pleaded with DHS to return him to
her in Calgary. DHS has refused, saying it hopes to hand him back
eventually but that Kirkman is unfit as a mother.

In the murky world where international child law intersects with
Oregon family law, Noah's case has attracted a myriad of state and
federal agencies and officials.

Judge Leonard, who like many contacted for this story declined to
comment, told Lisa Kirkman that she had abandoned her son in Oregon,
she said. Now, DHS and Leonard say they will not return Noah to her
until they're convinced that she is a responsible mother.

Juvenile Court records are secret. But Kirkman, seeking to publicize
her case, provided numerous court and DHS records to The
Register-Guard and other media.

The case is in Leonard's court where, according to Kirkman, DHS and
the judge are trying to decide whether to return Noah to Canada or
keep him in Oregon, give him U.S. citizenship and put him up for adoption.

According to court records, Oregon officials have told Kirkman she
must comply with several conditions before they return her son. These
include receiving therapy for borderline personality disorder,
undergoing parent training, establishing a safe home in Canada for
her son, and living a drug-free life.

That last directive is not easy for a marijuana advocate living in a
nation with different marijuana laws from Oregon's. Kirkman is a
marijuana activist and freelance marijuana--oriented writer. A
half-dozen years ago she ran a medical marijuana dispensary, the
Sunshine Coast Compassion Society Club, in British Columbia, where
she said was convicted in 2003 for growing pot. That crackdown came
after her club was profiled in The Seattle Post-Intelligencer newspaper.

Kirkman's interest in pot stems from her husband's battle with
myalgic encephalomyelitis, a neurological disease, she said. Kirkman
is seeking a medical marijuana card in Canada for her own arthritis, she said.

Noah, born in Calgary in 1996, has been under the jurisdiction of the
DHS since the fall of 2008 and now lives with a foster family in
Springfield and is in middle school, according to records.

Kirkman said she was living in Montreal in the spring of 2008 with
Noah and her daughter, Mia, now 7, and was planning to move back to
her hometown of Calgary because she thought it would have better
services for Noah, who has attention deficit hyperactivity disorder,
or ADHD, a neuro-behavioral disorder. She and her children briefly
visited Oakridge, where John Kirkman, Mia's biological father, had
moved. Lisa Kirkman and her daughter then returned to Canada, but
Noah stayed for the summer, she said.

After DHS ran a check on Noah, they found that he had a file with
child welfare agencies in Canada, she said.

"He has a huge file because he has special needs," she said. "They
decided to take Noah first and ask questions later."

DHS called her in the late summer of 2008, Kirkman said. The agency
said her husband was not supervising the child properly, she said.
Kirkman came back to Oregon in September that year and was at her
husband's home in Oakridge when two DHS workers from the Springfield
office came to the door, saying they had to take Noah, she said.

Noah was "extremely upset," Lisa Kirkman said. "He was confused at
first. We were all crying. It was very upsetting. He was just holding
me and hugging me and saying he didn't want to go.

"They said it would only be a few days," Kirkman said.

Fans on Facebook

Frustrated at her inability to secure Noah's return, Kirkman in
recent months has tried to rally politicians and the public to her
cause. She has created a Facebook page called "Return Noah Kirkman to
Canada NOW!" that has more than 1,300 members. She has contacted Gov.
Ted Kulongoski's office, as well as the offices of U.S. Sens. Jeff
Merkley and Ron Wyden.

When The Register--Guard contacted DHS about Kirkman, the agency
quickly sent an alert to Lane County's legislative delegation in
Salem, saying a news story was imminent and that DHS was doing its
best to return Noah to Canada.

At a Jan. 7 court hearing, Leonard told Kirkman that he was setting a
90-day deadline for resolving the case, she said. If it wasn't
resolved, Leonard said Noah's Canadian citizenship will be stripped
and he would be put up for adoption, she said.

Abandonment at Crux

How can Oregon keep a Canadian child against his mother's will?

"I don't think it matters where the person's from," said Raquel
Hecht, a Eugene immigration attorney. Hecht likens the case to a
situation in which a Canadian citizen commits a crime in Lane County.
They would be held accountable here by a court, she said.

"I can't think of anything offhand that requires them to deport him
(back) to Canada," Hecht said. "They can make him a legal resident
because the court has jurisdiction over him."

Hecht said an Oregon court can grant "special immigrant juvenile
status" if it finds it's in the child's best interest to stay in the
United States. The court must find the parent is unfit or has
abandoned the child, she said.

Kirkman, who is allowed to speak to her son weekly during supervised
phone conversations, said Noah wants to return to Canada. But his
caseworker writes in the court documents Kirkman provided that Noah
wishes to stay with his Springfield foster family. Kirkman says her
son lives there with three older foster boys. She has not seen Noah
since July. Because of her felony pot conviction in Canada, she is no
longer allowed to cross the U.S. border, she said.

The DHS caseworker, Christine Jolin, writes in the court documents
that Noah had been in foster care several times in British Columbia.

"Noah had previously been diagnosed with ODD and OCD while in
Canada," Jolin wrote, referring to oppositional defiant disorder and
obsessive compulsive disorder. Court records show that Noah was at
Oakridge Elementary School in the fall of 2008, then transferred to
Jasper Mountain School, for abused and emotionally disturbed
children, that November. He is now in a middle school getting mostly
A's, Jolin wrote.

Kirkman said she doesn't believe Noah doesn't want to come home to her.

"He's said to me several times that he wants to come home," Kirkman
said. "Even if he didn't want to come home, since when does an
11-year-old get to decide what country he gets to live in?"

Court-appointed attorneys in the case for Lisa Kirkman, and for Noah
on behalf of DHS, declined comment.

One option that has been discussed is allowing Noah to return to
Canada to live with his grandparents, Lisa Kirkman's mother and
father, in Calgary. Another possibility is placing him in foster care
in Calgary.

"The Right of the Child"

On Dec. 1, Kirkman's mother, Phyllis Heltay, visited the Springfield
DHS office to meet Noah, Jolin and Noah's psychologist, according to
records. After returning to Canada, Heltay on Dec. 7 e-mailed DHS:
"It is the right of the child to be with us -- which MUST be better
than being in foster care in a foreign country, removed from all
family and his own country."

DHS contracted with a Calgary agency called Adoption by Choice, or
ABC, to perform a "kinship home study" of the Heltays' home,
according to records. But the Kirkman family and the Heltays
contacted ABC and made threats toward the agency, causing it to
cancel the home study, records say.

Last spring, Leonard ordered Lisa Kirkman to undergo a psychological
evaluation. She saw a Calgary psychologist who recommended that she
undergo dialectic behavioral therapy, or DBT, to treat borderline
personality disorder. Court records say Kirkman has not done that.
Kirkman said it would cost $200 an hour and must be undergone for a
year, which would cost $20,000. DHS offered to pay for half, she
said. But she cannot afford $10,000, either, she said.

Kirkman was told the treatment would be free in Oregon through the
DHS if she was able to be paroled into the United States, but she
said she has no desire to live in Oregon and finding work here
without being a U.S. citizen would be difficult.

Other conditions for Noah's return to her listed in court documents
include Kirkman demonstrating impulse control, responsibility and a
plan to protect her son. The records say Kirkman has "diminished
capacities" and a "history of not protecting him."

Lisa Matsella, the Calgary psychologist Kirkman saw, provided a
report to DHS last fall that said that although Kirkman tests well,
"she has difficulties empathizing with others, and is very egocentric
in her choices that can result in hurt and instability for others in her life."

"I'm not a perfect parent. No one is," Kirkman said. "But no matter
what I've done, I don't know how they can justify taking my child."