L.A. Cnty. Dep't of Children & Family Servs. v. Irene V. (In re M.C.)
| Decision Date | 06 May 2011 |
| Docket Number | B223176.,Nos. B222241,s. B222241 |
| Citation | 11 Cal. Daily Op. Serv. 5444,195 Cal.App.4th 197,123 Cal.Rptr.3d 856,2011 Daily Journal D.A.R. 6514 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re M.C., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Irene V., Defendant and Appellant. In re M.C., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Melissa V. et al., Defendants and Appellants. |
OPINION TEXT STARTS HERE
Carlson & Greenberg, and John E. Carlson, Sherman Oaks, on behalf of Appellant Melissa V.
Michael A. Salazar, Chatsworth, under appointment by the Court of Appeal, for Appellant and Respondent Jesus P.
Joseph D. Mackenzie, Burbank, under appointment by the Court of Appeal, for Appellant Irene V.
Christopher Blake, San Diego, under appointment by the Court of Appeal for minor M.C.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel for Respondent Department of Children and Family Services.
Robert C. Fellmeth, Elisa Weichel and Christina Riehl for Children's Advocacy Institute as Amicus Curiae.
This dependency action involves the question of whether a child, born during the marriage of two women but conceived as the result of a premarital relationship between one of the women and a man, may have three presumed parents, one of whom is the child's biological mother, one of whom is the child's presumed mother because she and the child's biological mother were married when the child was born, and one of whom is the child's presumed father because he promptly came forward and demonstrated his commitment to his parental responsibilities, to the extent the biological mother and circumstances allowed. The juvenile court found the child has three presumed parents. The biological and presumptive mothers appeal, arguing the juvenile court erred when it found the father to be a presumed father. We conclude substantial evidence supports the parentage findings, but the juvenile court's work is incomplete. The matter must be remanded for the juvenile court to resolve the conflicting presumptions of parentage.
The presumed father argues the trial court also erred when it refused to place the child in his custody, pursuant to Welfare and Institutions Code section 361.2, because he is a noncustodial, nonoffending parent. We agree the court erred in its application of section 361.2 by failing to find placement of the child in her father's custody would be detrimental to her safety, protection or physical or emotional well-being. In light of the juvenile court's failure to first resolve conflicting parentage presumptions, however, the issue of placement was and is not yet ripe for consideration, and must be resolved on remand.
Background prior to juvenile court intervention
Appellant Melissa V. (Melissa) and appellant Irene V. (Irene) met in June 2006, and began living together within two weeks.1 The relationship was stormy from the start, marked by physical and verbal abuse by both women, and allegedly peppered throughout with problems arising from Melissa's mental illness and drug and alcohol abuse.
Melissa and Irene became registered domestic partners in February 2008; they separated on May 25, 2008. During that separation, Melissa began an intimate relationship with appellant and respondent Jesus Perez (Jesus). In June 2008 Melissa became pregnant with minor M.C. (or “the child”), and informed Jesus he was the child's father. Jesus was supportive of Melissa's pregnancy, and invited Melissa to live with him. Melissa lived with Jesus and his family for the first few months of her pregnancy. During that time, Jesus provided financial support for Melissa, and ensured that she received prenatal medical care.
On July 24, 2008, Melissa filed a petition to dissolve the domestic partnership with Irene. In conjunction with that petition, Melissa sought a temporary restraining order. In a statement filed in support of her request for the TRO, Melissa outlined incidents of abuse and physical violence Irene had allegedly committed against her between April 2007 and May 2008. The family law court issued a TRO (which was never served) against Irene on July 25, 2008.
Melissa and Irene reconciled in September 2008. Melissa told Jesus “she did not feel comfortable with him and preferred to live with Irene and that Irene had agreed to care for her and the baby,” and moved out. At first, the women lived in a car. In late September they moved into an apartment. When she left Jesus, Melissa did not tell him where she would be living. She did not provide him any contact information, and did not have a phone for more than a few weeks. Melissa and Irene were married on October 15, 2008, when same-sex marriage was legal in California.
M.C. was born M.C.V. in March 2009.2 Melissa is the only parent listed on the child's birth certificate. Irene was present at the child's birth. Melissa, Irene and M.C. lived together for about three to four weeks, until Melissa moved out taking the child with her. Jesus did not assert a right to visitation with or custody of M.C. after she was born, nor did he pay any child support. Jesus did not know where Melissa was living and made no effort to contact her through her family.
In May 2009, Irene filed a request in San Bernardino Superior Court (SBSC) for an OSC re child custody and visitation, seeking joint legal and physical custody of M.C. Melissa opposed that request. In June 2009, Melissa obtained a restraining order in the SBSC action.3
In June 2009, Melissa resumed contact with Jesus, who had moved to Oklahoma in February 2009 to pursue an employment opportunity. Melissa told Jesus she had left Irene, and needed financial assistance for M.C. Jesus agreed to send her money for the child's support and, on three occasions between July and August 2009, sent $100 to Melissa through Western Union. Melissa and Jesus maintained internet contact with one another and, at Jesus's request, Melissa regularly took M.C. to visit Jesus's family.
M.C. was taken into protective custody in mid-September 2009, after Melissa's new boyfriend, Jose A., attacked Irene with a knife, stabbing her in the neck and back and causing severe injuries. Melissa was arrested and charged as an accessory to attempted murder in connection with that attack.
Respondent Department of Children and Family Services (DCFS) filed the instant petition, pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b). As ultimately sustained, the petition alleged the assertion of dependency court jurisdiction over M.C. was warranted because Irene, Melissa's spouse and the child's presumed mother, and Melissa had a history of domestic violence, and that Melissa was incarcerated and had a history of substance abuse.4
In its detention report DCFS detailed what it then knew about M.C.'s background. It reported that Melissa and Irene were married, but had separated and were currently getting divorced. Melissanoted that Irene was not on the child's birth certificate and had not legally adopted M.C. Melissa told DCFS her relationship with Irene had always been violent. They fought often and, occasionally, both of them ended up with black eyes. Maternal grandmother echoed Melissa's statement. Maternal grandmother said Melissa and Irene had lived with her family for about six months in 2008. The relationship was volatile; Irene and Melissa fought at least once a week. The maternal grandparents wanted M.C. placed with them.
Melissa told DCFS Jesus was M.C.'s biological father, and that he was living somewhere in Oklahoma. She (untruthfully) said she had not been in contact with Jesus since M.C.'s birth, and had no information about him.
According to information obtained from the police, Melissa and Jose were driving in Melissa's car on September 21, 2009, and saw Irene board a bus. Jose got on the same bus and befriended Irene. Jose later bought a beer for Irene, and they sat in a park to drink. As Irene rose to leave, Jose stabbed her in the neck and back. Irene saw Jose run away and get into Melissa's car. Irene was taken to the hospital in critical condition.
Police officers contacted Melissa, who came to the police station. At first, Melissa denied any involvement in the stabbing. She told the interviewing officer she and Jose had been at home all day, smoking marijuana; M.C. was with them. Melissa was left in an interview room equipped with a telephone, and called Jose. She did not know she was being taped. The transcript of that recording reflects that Melissa told Jose, among other things, that she had covered for him, had told police she did not know his last name and “that bitch got what she deserved.” Later, Melissa admitted to police she and Jose had followed Irene. They had planned for Jose to confront Irene and scare her to “make sure she doesn't come to court and to back off and stay away from [Melissa's] baby.” Melissa said she and Jose wanted to scare Irene, but if scaring her did not work they would use physical violence. When Jose returned to the car after attacking Irene, he told Melissa “things went bad.” Melissa admitted she and Jose smoked methamphetamines in the car with M.C. in the backseat, and routinely used drugs in front of the child.
A DCFS social worker met with Irene at the hospital. Irene, who was medicated at the time, told DCFS she had not legally adopted M.C. because she did not think she needed to since she and Melissa were married. She said that she currently had an order permitting her to visit M.C. every other weekend, but had not seen the child in four months.5 Irene did not know Jesus, and later told DCFS she believed Melissa had only had a fleeting relationship with him.
At the detention hearing the court found...
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