APPEAL from an order of the Superior Court of Los Angeles County, Marilyn Mackel, Commissioner. Reversed; remanded with direction.Los Angeles County Super. Ct. No. CK79091 Los Angeles County Super. Ct. No. CK79091
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
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 non-custodial, 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.
FACTUAL AND PROCEDURAL BACKGROUND
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.*fn1
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.*fn2 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.*fn3
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.*fn4
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. Melissa noted 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.*fn5 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 Irene to be M.C.'s "presumed mother" pursuant to marriage, found Melissa to be the child's biological mother and found Jesus to be an "alleged father." M.C. was placed in shelter care.
After meeting with Irene in early October 2009, DCFS reported that she lacked transportation, and was unemployed and receiving general relief and food stamps. Irene lived with Maria C., Irene's mother's former companion, and Maria's daughter. The two bedroom apartment lacked beds or an operative refrigerator. Irene slept on a sofa, and Maria and her daughter slept on mattresses on the floor. Irene could not live with her own mother, because her mother was involved in her own ongoing dependency action, and her other children were detained in permanent placement. In additional to the unsuitable physical environment, DCFS was reluctant to place M.C. in Irene's care because she remained injured and unable to care for the baby, and there was a chance she might be attacked again, as Jose remained at large.
DCFS determined that, with a few physical changes and the vacation from the home by a maternal uncle, the maternal grandparents' home would be a suitable physical environment in which to place the child. M.C.'s maternal grandfather, who had recently retired, was available to care for her during the day.
Jurisdiction and disposition
DCFS's jurisdiction/disposition and supplemental reports contained Melissa's, Irene's and Jesus's responses to the allegations of the petition and additional information. Melissa told DCFS she and Irene had engaged in physical violence throughout their relationship, including incidents during which Irene struck her with a closed fist, and kicked and pushed her. The final incident occurred in May 2009 when Melissa returned to their home to retrieve belongings, and Irene pushed her into a closet and a window. The women did not engage in any physical violence during Melissa's pregnancy or in front of the child. Melissa also told DCFS she had been diagnosed with bipolar disorder and severe depression when she was 13 years old, had battled depression throughout her life, and had been involuntarily hospitalized several times due to suicidal ideations.
With regard to Irene's stabbing, Melissa said she had not wished to kill or harm Irene and had not known what Jose did. She said she and Jose followed Irene because they "just wanted to scare her. [Melissa] did not want her visiting with the baby and [she] wanted for her to stop fighting for custody of [M.C.]." Melissa said her attempts to reconcile with Irene had been futile; they simply continued to argue. She told DCFS Irene did not provide financial support for M.C., and that Irene had not been emotionally supportive when they lived together--she had seldom held the child and became easily irritated when the infant cried.
Melissa denied telling the police she had used methamphetamines the day Irene was stabbed, denied any methamphetamine use since high school, and denied she had ever been under the influence of drugs or alcohol in front of her child. She did admit that she had a significant history of drug abuse in the past, and that she continued regularly to drink and smoke marijuana.
With respect to the allegation regarding Jesus's failure to provide for the child's care, Melissa told DCFS he "can't provide he is in Oklahoma." But she said he had sent money for the child's support through Western Union. She also said Jesus had been supportive of her pregnancy, was supportive after M.C.'s birth and had never denied paternity. Melissa said she had lived with Jesus and his family for the first four months of her pregnancy.
In response to the allegations of domestic violence, Irene admitted she fought with and yelled at Melissa, but adamantly denied ever having hit her. When asked about specific instances in 2006 (involving a thrown hammer), and in 2008 (after which Melissa had been treated at a hospital), Irene claimed that the first instance had been Melissa's doing, and the latter had occurred after a drunken Melissa fell down a set of stairs. Irene said Melissa "had a history of fabricating stories and making false accusations against people." Irene told DCFS that she had used methamphetamines when she was in high school. Irene admitted drinking alcohol on occasion, but denied any current alcohol or drug abuse. Regarding Jesus, Irene told DCFS she believed he was only a "one night stand and that [Melissa] had no contact with him." Irene acknowledged that the demise of her relationship with Melissa was for the best, but said she believed she would continue to co-parent M.C., and was committed to securing a safe and nurturing home for the child.
DCFS was able to conduct a telephonic interview of Jesus in Oklahoma by mid-October 2009. He said Melissa told him her entire relationship with Irene had involved physical violence, and he had never understood why she went back to Irene. As far as the drug abuse allegations, Jesus thought "Melissa smoked marijuana."
Jesus denied the allegation that he failed to provide for M.C. He told DCFS he and Melissa met over the Internet, and became intimate a few days after they met. Shortly thereafter, Melissa became pregnant. When that happened, Jesus took Melissa into his home, provided for her financially and made sure she went to her doctor's visits. He told DCFS he had always intended "to be father to the baby no matter what," irrespective of his relationship with Melissa. When Melissa moved out to return to Irene, she told Jesus she "did not feel comfortable with him and preferred to live with Irene," who had agreed to care for her and the baby. Melissa did not tell Jesus where she was going, and did not provide him with any of her contact information. In ...