Ruling on a case with complex, even dismaying, facts, the California 2nd District Court of Appeal ruled May 6 in In re M.C., 2011 Westlaw 1734263, that a Los Angeles County trial court failed to complete the task before it when it concluded that three people had parental claims regarding a child, and that the child should be placed with its maternal grandparents with reunification services offered for all three presumptive parents. The Court of Appeal found that since the trial court had found that all three adults were presumptive parents with respect to the child, the court should then have "reconciled" the "competing presumptions of parenthood" so as to eliminate one of the three and avoid a situation where the child has three parents.
The case presents a long and winding tale, but to reduce it to its essentials, the three parents here could be described as birth mother, birth mother's wife (married in October 2008, during the window period prior to the passage of Proposition 8 when same-sex couples could marry in California), and the man who was briefly the birth mother's boyfriend and is the putative biological father of the child. The court used first names for the parties for purposes of relating the facts, naming birth mother Melissa, birth mother's wife Irene, and birth mother's boyfriend Jesus.
Melissa and Irene were California registered domestic partners who had a difficult relationship, attributable to combative personalities, alchohol and drug use, and Melissa's mental difficulties. Early in 2008 they split up and Melissa hooked up with Jesus on the internet, quickly becoming pregnant by him. When she informed him that she was pregnant with his child, he prevailed on her to move in with him and his parents, and arranged for prenatal care. But she became restive and uncomfortable in this nest of heterosexual domesticity, evidently, and fled without leaving contact information. (She lost her cellphone, among other things, and did not contact Jesus to inform him of her whereabouts). She reconciled with Irene, who said she would help to raise the child, and they married. The child was born after the marriage was performed. For a few weeks after the child's birth they were living together and Irene was helping to care for the child, but the old problems recurred and they broke up again.
Irene was concerned about the child's welfare living with Melissa, and filed an action in San Bernardino Superior Court seeking joint legal and physical custody. She alleged that as the child was born while she was married to Melissa, she had parental standing. Melissa opposed Irene's suit and obtained a restraining order against her. Melissa finally contacted Jesus, locating him through his parents, as in the interim he had moved to Oklahoma to follow a lead on a job. When he learned he was the father and Melissa needed help, Jesus, who was by now working in Oklahoma, started sending her money and arranged for her to visit his parents with the child.
In September 2009, Melissa's new boyfriend, Jose, attacked Irene with a knife, causing severe injuries. Melissa was charged as an accessory in the attack and arrested. Allegedly this attack was intended to deter Irene from pursuing her action for custody of the child. The Department of Children and Family Services got involved, taking the child and placing her with a foster parent. So, Irene was in the hospital in serious condition, Melissa was in jail charged as an accessory to attempted murder, Jose was living in Oklahoma (and became engaged to a woman there, who was soon pregnant) and decided he wanted custody of the child, and the child was in foster care. Melissa's parents also sought custody of the child.
Trying to sort everything out, the trial court concluded that each of Melissa, Irene, and Jesus were all parents of one kind or another in relation to the child. Melissa was the biological mother. Irene, as Melissa's spouse when the child was born, was a presumptive parent of the child by statute. Jesus, a biological father who had no established relationship with the child (having not even learned of the birth until well after it happened and having only seen the child briefly on some visits from Oklahoma), nonetheless could qualify as a presumptive parent under California case law recognizing constitutional claims of presumptive parental status of a biological father who had been prevented from establishing a relationship by the actions of the child's biological mother or third parties. The trial court seemed to find itself in a bit of a quandary, but decided that among all those with an interest in the child, the maternal grandparents seemed the best bet, with provision for visitation by all the presumptive parents.
All the presumptive parents appealed. The court of appeals concluded that the trial judge had correctly analyzed the situation so far as determining that Melissa, Irene and Jesus were all presumptive parents, but concluded that the trial court had stopped short of actually resolving the case in compliance with California law. "The principal issue on appeal," wrote Justice Jeffrey Johnson for the court, "concerns the juvenile court's novel finding that M.C. has three presumed parents, a biological presumed mother, a statutory presumed mother and a constitutionally presumed father under Adoption of Kelsey S., 1 Cal.4th 816 (1992)." Melissa and Irene objected to the finding that Jesus was a presumed father. Jesus claimed that the child should have been placed in his custody as the biological father, living with a pregnant fiance in a home where suitable provision could be made for the child. (Irene's living arrangement was not particularly desirable, and Melissa, of course, was in jail awaiting trial.) Counsel for the child and amicus curiae (The Children's Advocacy Institute) argued that the trial court's decision could or should be affirmed.
But the court of appeal concluded that existing California precedents bound it to reject the suggestion that the child could simultaneously have three legal parents. "Increasingly, as aptly illustrated here," wrote Johnson, "the complicated pattern of human relations and changing family patterns gives rise to more than one legitimate claimant to the status of presumed parent, and the juvenile court must resolve the competing claims. As the Supreme Court explained in Jesusa V., 'although more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, ''there can be only one presumed father.'' The procedure for reconciling competing presumptions is set forth in section 7612. It provides that '(a) … a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. (b) If two or more presumptions arise under Section 7610 or 7611 that conflict with each other, or if a presumption arises under Section 7610, the presumption which on the facts is founded on the weightier considerations of policy and logic controls."'
The court rejected the suggestion of counsel for M.C. and the amicus curiae to use the case as a vehicle to adjust the inadequate statutory framework to accommodate new family developments by entertaining the possibility of three parents. "To date," said the court, "the [California] Supreme Court has rejected the concept of dual paternity or maternity where such recognition would result in three parents," and insisted that it was thus bound to require a resolution where the child would in the end have no more than two.
The court discussed at length the status claims of all three, concluding: "We are left with three individuals claiming legal status as parents: a biological mother (pursuant to section 7610), a statutorily 'presumed mother' (pursuant to section 7611, subdivisions (a) and (d)), and the constitutional equivalent, a Kelsey S. father. Only two of these individuals may retain that status. A juvenile court faced with conflicting claims of presumed parentage must apply section 7612 to determine which presumption controls."
Since none of these presumptive parents had been shown to be unfit, the trial court had refused to "weigh" the presumptions and narrow the list to two, but the court of appeal insisted that "the juvenile court must take the next step to reconcile the competing presumptions to determine which of them are founded on the weightier considerations of policy and logic." The court also concluded that it would be premature for the court to consider Jesus's challenge to the trial court's failure to place the child with him, since the process of weighing the presumptions and reducing the list of presumptive parents from three to two would naturally have to come first before a custody decision could be made.
Justice Frances Rothschild, concurring in part, agreed with the majority that the child could have only two legal parents, but found much of the opinion to be unnecessary, arguing that the logical result of this case should be to place the child with Jesus, the presumptive father. This was because, according to Rothschild, a review of the record showed that in the narrowing process, Jesus would have to be one of the two because there was nothing on the record to rebut the presumption in favor of Jesus, whereas both Melissa and Irene presented deficits that would have led to either one or the other being eliminated in this weighting process. (Most likely this would be Melissa, now in jail and likely to be convicted and sentenced for her part in the plot that led to the stabbing and serious injury to Irene.) "We should therefore direct the trial court to place M.C. with Jesus forthwith," wrote Rothschild, emphasizing that the route prescribed by the majority for continuing this case would unduly delay the final resolution of the case. "On this appeal," wrote Rothschild, "we should direct the trial court to do what it should have done on February 5, 2010. M.C. has been separated from Jesus for too long already, and continuing delays do not benefit her."
This is a heartbreaking case to read, both for the unfortunate facts and for the inadequate statutory framework for dealing with unusual family situations. Could the court of appeal have affirmed the trial court's finding that there are three presumptive parents and that each should have a continuing legal parental legal status to the child? It would certainly be a daring move in light of the Supreme Court's failure in the past to embrace the idea that a child could simultaneously have three parents. On the other hand, the California Supreme Court has, over the past decade, become increasing willing to innovate in its interpretation and application of the California family law statutes to accommodate the challenges presented by non-traditional families and new reproductive technology. Perhaps if this case is appealed further, the Supreme Court will have another opportunity to innovate. But what might make more sense would be for the legislature, once and for all, to do a thorough-going revision of the relevant statutes to accommodate the new realities of family life in California.
Counsel for the appeal included John E. Carlson (Sherman Oaks) for Melissa, Michael A. Salazar (Chatsworth) under court appointment for Jesus, Joseph MacKenzie (Beverly Hills) under court appointment of Irene, Christopher Blake (San Diego) under court appointment for the child, government attorneys representing the Department of Children and Family Services, and the Children's Advocacy Institute as amicus represented by Robert C. Fellmeth, Elisa Weichel and Christina Riehl.