Metropolitan News-Enterprise


Monday, May 9, 2011


Page 1


C.A. Sends ‘Three-Parent’ Dependency Case Back to Superior Court

Panel Says Child of Same-Sex Couple Can Only Have Two Parents, Trial Court Must Figure Out Which Two




A Los Angeles Superior Court commissioner was correct in ruling that the child of a same-sex couple had three legally presumed parents, but only two of them can be the child’s lawful parents, the Court of Appeal for this district ruled Friday.

Justice Jeffrey W. Johnson, writing for Div. One, acknowledged the difficulty of reconciling longstanding legal principles with “the complicated pattern of human relations and changing familial patterns.” But that is the work of the courts, he said, because only the Legislature can resolve “complex practical, political, and social matters.”

The child, identified by the court only as M.C., is a little over two years old. 

Her biological mother is Melissa V., who was in a registered domestic partnership with Irene V. from February to May 2008, when the couple—whose relationship was described by the court as being violent from the start—separated. They later reconciled and entered into a marriage in October 2008, during the period when same-sex marriage was legal in California.

On Again, Off Again

In the interim, however, Melissa V. had a relationship with Jesus Perez, who, according to the testimony, was with her for the first four months of her pregnancy, told his friends and family that the child was his, and offered to support the child. She told him, however, that she had decided to return to Irene V., who had offered to support her and the baby.

Melissa V. is the sole parent listed on the birth certificate. Her spouse was present when the child was born, but Melissa V. moved out with the child after only three or four weeks.

Perez, meanwhile, had moved to Oklahoma for job reasons. After Melissa V. contacted him, he sent her money on several occasions and she took the child to visit members of his family locally.

The Department of Children and Family Services intervened after a September 2009 incident in which Melissa V.’s new boyfriend allegedly attacked Irene V. with a knife, causing severe injuries. Melissa V. was charged as an accessory to attempted murder after admitting to police that she and her boyfriend plotted the attack in order to prevent Irene V. from seeking custody of the child.

Melissa V. also admitted to police that she and her boyfriend used drugs regularly, sometimes when the child was present.

Superior Court Commissioner Marilyn Mackel eventually found that M.C. was a dependent child due to her mother’s involvement with drugs and domestic abuse. The commissioner found that Melissa V. was the child’s biological mother, and that Irene V. and Perez were presumed parents,

Everyone Appeals

The child was placed with her material grandparents, with Irene V., Perez, Perez’s mother, and the incarcerated Melissa V. all being given some form of visitation rights. Irene V., Melissa V., and Perez all appealed, with both women arguing that Perez cannot be a presumed father and Perez arguing that he should have been given immediate custody.

Counsel for the minor, as well as the Children’s Advocacy Institute as amicus, argued that the child could have three parents.

Johnson, writing for the Court of Appeal, explained that the Family Code presumptions regarding parentage apply equally to same-sex couples. Thus, Irene V., having been married to the biological mother when the child was born, is presumed to be a parent M.C. 

That presumption, however, conflicts with the constitutional presumption set forth in Adoption of Kelsey S. (1992) 1 Cal.4th 816, Johnson went on to explain. Kelsey S.  holds, as a matter of substantive due process, that  an unwed biological father may assert  paternal rights after learning of his child’s existence, if he has been prevented from becoming a statutorily presumed father under Family Code Sec. 7611 by the unilateral conduct of the child’s mother or a third party’s interference. 

Sec. 7611 creates a presumption of paternity in favor of a man who receives the child into his home and holds the child out as his own. Fathers asserting rights under Kelsey S. are commonly referred to as “quasi-presumed” fathers.

Under Sec. 7612, Johnson noted, the court is required to resolve conflicting claims or presumptions based on “considerations of policy and logic.” That section, the justice said, precludes a “three-parent” solution.

Even if the law allowed for such a solution, he added, it would be “unwise” in a case where the child “has never found safety or stability with any individual claiming parental status” and the mother’s imprisonment and drug abuse make in unlikely that such stability will be achieved prior to the time that her parental rights would be subject to termination under dependency law.

Dissenting View

By correctly ruling that the child had three presumed parents, but failing to resolve the conflicting presumptions, Mackel left the court’s work “incomplete,” requiring reversal and remand, Johnson said. Justice Victoria Chaney concurred.

Justice Frances Rothschild, in a concurring and dissenting opinion, argued that custody should have been awarded to Perez because there was no substantial evidence that would have supported a ruling that resolved the conflict of presumptions against him.

“[T]he trial court should have reduced the number of presumed parents from three to two, and Jesus should have been one of the two,” the justice argued. 

The case is In re M.C., 11 S.O.S. 2368.


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