“But aren’t those factual determinations for the trial court to make?” the judge interjects.
“Exactly!” Stephen interjects as I pause, recognizing I have already lost. Stephen proceeds to inform the court that it would have been cruel and abusive for Patty to have sought parentage when Karen was “incompetent” in the hospital and that the grounds for establishing parentage arose partly in the nearly two years that Dawn lived with Patty and her family ‘as another daughter’.
I return to the finality of the guardianship termination but recognize the probable futility of this effort. Even though the judge announces she will take the matter under submission because she wants to read the cases cited and consider the legal issues, I can predict her decision. I am now relieved that Karen was not present to have to hear herself termed incompetent.
17
KAREN
I’m glad that I told Analee I would not come to the hearing. I watch Dawn almost skip into her classroom as if expecting the wonders of Disneyland. I remind her that I will be teaching ‘just down the hall’ and will come for her at the end of the day. She says ‘bye, Mom’ as casually as if I were going into the other room of our little house and turns to the attractions of her kindergarten room.
I will have an hour before any students come to my art room. I know there will be 21 third graders at 9:40, 19 fourth graders at 11:40, 17 fifth graders at 12:40, and 16 six graders at 1:40. I will start with acrylic painting, easy-to-mix colors, water-based for easy washing up, and thick enough to paint over anything the students don’t like. I cover the large art tables with paper and set up small pots of paint, brushes and painting paper for the first students. After I show them how to mix colors, I will ask each of them to paint their favorite place from their summer break. I smile as I think of asking them to paint where the ketchup grows but keep that antic thought to myself. I’ve posted a large color wheel at the front of the room. By the 9:30 bell, my classroom is in order. I have donned my own painting apron and hung enough aprons for each student just inside the entrance to the room.
The eight- and nine-year-olds stream in with the energy of soccer players. I let them group themselves at the tables rather than assign them seats. There are six tables for four each, which is more room than we need. While most of the students jam to sit near each other, one boy moves to the furthest table to sit alone. Although my initial instinct is to place him near others, I decide to watch and wait. At the 9:40 bell, I welcome them and describe our activity. I ask the class as a group what is the favorite place each has visited last summer, and hands shoot up. “The river” is the most common refrain, and I tell them it is mine also, but one student mentions Las Vegas and another Mt. Rainier. I ask each of them to sketch in pencil just an outline of his or her favorite place for five minutes and then give them a short talk and demonstration of mixing paint colors. When I let them loose on their task, there is an unbridled energy at some of the tables, with the expected tipping of at least one of the paint pots, which I explain is their responsibility to wipe up, but at the back, the solitary boy is slow, quiet and deliberate. After they settle down, I walk around to provide help and suggestions. The girl who has seen Mt. Rainier wants to know how to paint white, and I explain the trick of leaving blank spaces for what she wants to be white. When I finally reach the loner in the back, I see that he is painting, with patience and some skill, what looks like an abandoned cabin. I praise his effort and ask him where it is. He tells me it is a gold miner’s cabin in Washington and asks me if I know where that is. I nod and tell him it is a little town at the bottom of a huge hill east of Nevada City. He gives me a small nod and a hint of a smile. I want to ask him if he lives there, but I don’t. No need to dredge up any unwanted memories of Abe.
The class hour, which isn’t a full hour, zips to its end. I give each of them a five-minute warning, as ask them to put their names on a large folder I have put at each place, to store his and her artwork for the semester. Since it will take a little while for each of their paintings to dry, I ask them to put their painting on top of but not inside the folder. By the end of the semester, I promise them, each will have a portfolio of artwork to show off – and it will be worth showing off.
I do the same exercise with each class, partly to give them an easy outlet and partly to assess their skill levels with mixing colors and handling paints. At lunch, I make a point to sit with Dawn’s kindergarten teacher. She is the only one of all of the teachers who is in her first year of teaching.
By the closing bell, I am physically tired but stimulated by contact with so many children. As I walk down the hall to pick up Dawn, I catch a glimpse of her hugging a girl with light brown skin and a cascade of reddish-yellow hair, before she runs over to hug me. I practically trip over her grasp of my legs and grab a desk to balance myself. “I’m going to learn to read!” she proclaims as if I’d never told her so. (Maybe I hadn’t.) In the jumble of parents reclaiming their children, I wave over my shoulder to Ms. Joyner and feel the pulse of my cell phone. I reach for it as Dawn continues to rave about her day. As soon as I see it is from Analee, I put the phone back into my pocket until we get into the car. Dawn prides herself on fastening herself into her own car seat, and I glance at my phone while she does so.
“No decision today. Will send it to you as soon as I receive it from the court. Analee.”
I sit for a moment with a tumble of reactions. I have spent a full day without even thinking of the threat of the lawsuit; now it comes back like a punch in the jaw. Analee texted me instead of calling. Does she not want to talk to me about what happened? Should I phone her back?
“Mom” comes to me as if from another place. “Can we get ice cream on the way back home?”
“Absolutely. Comin’ up.” I vow to stay in Dawn’s reality as much as I can.
As I reflect back, my time at school that first semester was one of the few respites I have had from my preoccupation with the lawsuit since it was filed. All the good developments of that semester seem too often to get lost in the misery of preparing for trial. I did manage to get a book contract for “Where Does the Ketchup Grow?” but the whole advance went directly to Analee for attorney fees. Dawn loves kindergarten, she quickly learned to read, and she made friends – especially with the biracial Alana with the luxuriant hair – but she still misses Ian and asks why she can’t visit with him.
18
ANALEE
The decision arrived on Friday of the same week as the hearing. The court decided it could not determine the merits of Patty’s claim to parentage without hearing the facts. Nor could it grant visitation to Patty without a prior determination of parentage, since the guardianship had been concluded. As soon as I finished reading it, I e-mailed it to Karen, inviting her to call me.
Since this was the outcome I had expected, I had been strategizing in my head – while cleaning up after dinner, running in the morning or even working on more routine cases – on what discovery to conduct and when. I was eager to take the deposition of Doug, Patty’s husband, since we already knew he didn’t want this lawsuit. I want to depose him even before I depose Patty, and I was already composing questions to get under her skin.
By the time Karen called, I had already moved to this eager phase and had almost forgotten my role in trying to assuage her disappointment at the lawsuit going forward. Fortunately, she leapt in with her questions before I could blunder into my discovery lust. Did the court think Patty was going to win; is that why it did not dismiss her action? No, not at all, I explained, but the court recognized it would need to know the facts before it could rule on the merits. I gave her my canned rendition of decisions on the law versus decisions on facts. As I spoke, I could almost hear my own eagerness to get into the meat of this lawsuit, which surprised me even as I began to recognize it.
Karen seemed prepared to accept the reality of going forward, but when I mentioned taking Doug’s deposition, I
hit a wall with her.
“No. He confided in me and said he wanted no part of this lawsuit.”
“Did you promise to keep him out of it?”
“I’m not sure. I didn’t know if he could be kept out of it, but I want to respect his wishes.”
We went back and forth on this before I abandoned the effort in this conversation, but she did give me her clear permission to take Patty’s deposition, and I sent out the notice the following day. Ideally, I would take his before taking hers, or at least immediately afterward; but I wanted to make sure I would depose Patty before Stephen would depose Karen. I did send Karen a lengthy e-mail explanation of what Doug could add factually to the whole background, including the period of time while she was in the hospital and rehab and had no way of knowing what was going on in Doug and Patty’s home. I told her how the court would want to know Doug’s stance in this unusual parentage suit, what he could contribute to the question of how the children got along with each other, and more. I wanted to let her sit with this note and digest the advantages.
Stephen phoned me the next day to request a different date for Patty’s deposition, since he had a trial set for the day I had it scheduled. We reviewed our respective calendars and found a new date we were both available, subject to his clearing the new date with Patty.
“Stephen, one more thing: I want to take Doug’s deposition.”
I didn’t yet have Karen’s authorization for this, but I hoped I could persuade her.
The line went silent for a long moment before he replied.
“What about the spousal privilege not to testify?”
“Let’s see if he claims it. Patty can’t claim it for him.”
“Do you really want to go down that path?”
“I think I have to. Can you imagine if I don’t take his deposition and he appears at the trial to testify? I can’t let that happen.”
“I hear you, but there’s another solution. Will you back off if I can give you a stipulation that he won’t testify at all in this proceeding?”
We left it at that, with his obvious need to discuss this issue and its ramifications with both Patty and Doug, and my need to talk to Karen about it too. As I thought about it afterward, this stipulation could be the best solution. Karen would not have to violate whatever promise she may have made to Doug, and the court would be left wondering what role Patty’s husband has to play in this family. Her going forward without him by her side would leave the impression with the court that he wanted no part of this effort. What kind of family would Patty be creating where Dawn would have two mothers, an uncle married to one of them, and two siblings, one of whom resents her?
Stephen got back to me within a day to say that Patty and Doug would agree to the proposed stipulation keeping him out of the whole action. When I spoke to Karen, she agreed immediately. She really wanted to honor Doug’s request. Stephen had found a way to do that without our prejudicing our case.
Which is not to say I don’t have some litigator’s regrets about this. I have, in my periodic wakeful stages in the middle of the night, thought of brilliant, razor-sharp questions to ask him. But causing him pain on the stand might not advance my cause, and I have to keep telling myself that destroying one witness on the stand is not the same as winning the case.
19
KAREN
Analee told me I would need to attend Patty’s deposition so that I could help her correct any misstatements Patty might make. I told her I would be there even though it entailed my taking a day off teaching. I didn’t tell her how badly I wanted to be there to see Patty suffer under her questioning.
Sitting across a conference table from Analee and me, Patty wears a navy business suit with a sheer, lemon-colored blouse underneath, her hair so clean it glistens, pulled back into a bun. I wonder for the first time if Patty tints her hair; it has auburn highlights I have never noticed before. When Analee asks her to describe her educational background, she mentions first her law degree from UC-Davis. Asked if she’d ever practiced law, she says, “No, I wanted to be a full-time mother first.”
“How many children do you have?”
“Counting Dawn, three.” Analee had trained me not to react, and even I recognize this as calculated bait. I sit impassively next to Analee, gripping the pen she has provided me to jot down any notes to her.
“Did you consider yourself Dawn’s mother when you agreed to donate your ovum to Karen?”
“No, Dawn didn’t yet exist.” Patty tries to squelch a smile, but I can see her trying to mess with Analee.
“I’ll rephrase my question,” Analee says quietly, apparently unruffled. “When you agreed with your sister Karen to donate your ovum to her, were you planning to become the mother of that child?”
“Not at that time.”
“When you obtained Karen’s consent to be named as Dawn’s guardian, were you then planning to become Dawn’s mother?”
“Not right away. It was something of an emergency. Dawn and Karen both needed immediate care. After we settled into the situation, it became gradually obvious that I was as much a parent to Dawn as to Sandra and Ian.”
“And did you consider yourself Dawn’s parent when Karen left the hospital?”
“I would say yes; Dawn still needed my full-time care.”
“When Karen left the rehab facility and returned home, did you consider yourself Dawn’s parent then?”
“Yes.”
“And that sense of parenthood was something you took very seriously?”
“Yes, definitely.”
“Then why didn’t you assert that you were Dawn’s other parent when Karen filed her petition to end the guardianship?”
I can tell she hadn’t thought of it then at all. Her expression begins to dissolve like a pattern in sand rinsed by a wave, and her face takes a tilt toward her lawyer, but she rallies.
“I didn’t assert it then because it seemed obvious to me that the guardianship needed to be maintained, and I didn’t want to add to Karen’s troubles because at that time she still had so many.”
“And now she doesn’t have so many troubles?”
There is a long pause, and I wish a video could capture the tics crossing her face.
“Karen is still troubled, and she has made it more difficult for the whole family by not letting me spend time with Dawn. Dawn needs her whole family, not just her birth mother.” She spits out the words ‘birth mother’ and glares at me as she does so. I give her as vacant a stare as I can muster.
“Does Doug regard himself as Dawn’s father?” Analee is shifting her tack. “I notice he’s not a party plaintiff.”
“He doesn’t feel as strongly as I do about this and chose not to be a party.” Patty says this with such pursed lips that I can imagine what a hard time she must have given him.
“But answer my question: does Doug regard himself as Dawn’s father?”
“He’s been a real father to her ever since she came to live with us, even though he doesn’t think of himself as her father.”
“So if you prevail in this lawsuit, Dawn will have two legal mothers and no legal relationship to your husband?”
“Calls for a legal conclusion,” interjects her lawyer.
Analee reminds Patty she should still answer the question.
“Yes. Doug will still be Dawn’s uncle. Dawn will have two loving parents, and I will be there to ensure her physical and emotional safety.”
“You believe Karen will not ensure Dawn’s physical and emotional safety?”
“That’s exactly what I’m worried about.”
“What makes you think that Karen will not take care of Dawn’s physical and emotional safety?”
“Well, just a few months ago, she apparently accidentally dropped Dawn into the river. Dawn nearly suffered a concussion and could easily have drowned. Karen think
s nothing of taking Dawn on hikes where there are rattlesnakes and mountain lions.”
I suddenly recall Analee and the rattlesnake and suppress my own smile.
“Are there rattlesnakes in your community?”
“I don’t think so. I’ve never seen one.”
“And no mountain lions, I suppose.” We had all read the article about the suburban woman who discovered a mountain lion attacking her six-year-old son in the backyard.
“Not that I know of.”
“Do you ever take your children to the river to swim?”
“No, I don’t think it’s safe. We have a pool in our back yard.”
I watch Patty as if she were a person I had never seen before. Had I ever noticed how prim she looks and sounds? It occurs to me for the first time that she probably thinks the river is too dirty; her kids could drag mud into the house.
“Do any of your friends take their children to the river to swim?”
Raising Dawn Page 14