Here's a dilemma: A 38-year-old married woman starts an illegal sexual affair with a neighbor, a 14-year-old Orange County boy with, as one official described it, "raging hormones." Sometime during as many as 40 late-night encounters during a six-month period, the couple conceives a baby. Who should get legal custody of the child? The mother? The boy? The state? Foster parents?
Because the scenario is factual, Orange County Superior Court Judge Dennis J. Keough faced that question in August 2010 and decided to give the little girl to the boy, Miguel, a football player who was then on the verge of entering the 10th grade at a Santa Ana high school. (Miguel's last name is excluded from the public record because he is a minor.)
This month, however, a three-justice appellate panel led by William W. Bedsworth—arguably Orange County's most brainy judicial officer—reversed Keough's decision and determined the infant belongs with her mother, Debra Ayala Tapia.
The reversal is stunning, and not just because Bedsworth and Keough share similar general political ideologies as conservatives appointed to their weighty positions by Republican governors. Bedsworth looked at the same facts as Keough and, as he has proven apt to do, thought outside the proverbial box. He ridiculed Keough's ruling—which was supported by Orange County's government social workers—as, well, boneheaded.
Based on available law-enforcement records, here's background on the situation: Tapia, who stands 5-foot-4 and weighs 140-pounds, was the married mother of three children. She was tipsy on beer one night—there are conflicting stories about timing—when she kissed and groped Miguel in a Santa Ana residential swimming pool. The incident ended in intercourse, according to police. (Note: the appellate court record in this case does not list Debra's last name; however, the facts of the custody case are identical to those in a related criminal case, where last names were included.)
How's this for awkward? Tapia's oldest children were friends of her young paramour. Miguel's mother, who discovered the affair and called police, was Tapia's longtime neighbor and friend. Santa Ana police arrested Tapia because it is illegal for an adult to have sex with a person who is a minor. DNA testing later confirmed that Miguel had fathered the child. In October, Tapia pleaded guilty to three felonies. She was sentenced to spend a year in Orange County Jail, where she currently resides, and faces three years of formal probation when she emerges.
But because Tapia appealed Keough's ruling, she will presumably gain custody of the baby, called "B.T." in court records, thanks to Bedsworth and his two appellate-panel colleagues, William F. Rylaarsdam and Kathleen O'Leary. At the core of their decision is the belief that Tapia's sex crimes did not automatically place her in the category of unfit mother. Keough and the county's social workers seemed to have begun their analysis with the opposite assumption.
Indeed, the Social Services Agency (SSA)—which had removed the little girl from Tapia's custody when she was 5 months old—eventually removed her three other children from her custody, too. They determined that Tapia's "lapses in judgment and impulse control" with Miguel had proved she was a serious threat to all children in her house.
"SSA's position assumes an adult woman who has had a consensual sexual relationship with an unrelated boy will probably sexually abuse her infant daughter," wrote Bedsworth, a former OC prosecutor and Superior Court judge first elected to the bench in 1986. "This is, of course, a complete non sequitur, so it is not surprising that the record contains no evidence to support this assumption. . . . If Debra were given to sexually abusing her children, she had three handy before B.T. was born, including two boys. All three older children denied ever being abused, sexually or otherwise; [there is] no evidence of Debra being accused of molesting another child in the past. The record is devoid of evidence of a risk to B.T. being molested by Debra."
Bedsworth also wasn't happy that SSA officials had mocked Tapia's husband for eventually accepting B.T. as a member of his family. Social workers had dismissed the husband's move as "co-dependent" behavior. But the appellate judge argued that the husband had displayed "remarkable magnanimity" and was "shocked" by the attempted belittling mischaracterization.
Bedsworth then turned his attention to Miguel's suitability to have sole custody. He noted that the teen was a first-time, inexperienced father; couldn't remember the child's birthday or many of the details of the sexual affair; and fed the infant only once a day. He also noted that Miguel believed a child's fever could be treated simply by sleep.
"[The baby's] best interests are at issue here," wrote Bedsworth, who said Tapia had a record of providing her own children with "a secure" family life. "Everything else has to take a back seat. . . . Debra made a grave mistake [with Miguel, but] depriving B.T. of her mother's care as punishment for this mistake is not in keeping with the purpose of the dependence statutes and is inexplicable in any terms other than misplaced moral outrage."
In a final, unsparing shot at local government bureaucrats in the case, Bedsworth concluded that they'd been "so busy demonizing Debra" that they'd "abandoned" their "role as protector of children and preserver of families."
Bedsworth has a history of making controversial rulings. Late last year, the justice—until recently also a National Hockey League referee—authored an opinion that a dissenting colleague blasted as an unprecedented reduction of First Amendment freedoms. That case, which was covered in this column (see "Crying Racist," Nov. 25, 2010) involved Latino activist Nativo Lopez and his claim that a Los Angeles food-packing company's officials had committed racism when they fired more than 100 workers who could not prove U.S. citizenship.
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Bedsworth slammed Lopez's actions as illegal, demonstrably false defamation of a corporation and determined he was liable for damages. In the minority, Justice Richard D. Fybel adamantly disagreed, noting that Lopez was constitutionally entitled—as is any member of the media—to publicly assert his view of the company's conduct.
In 2007, Bedsworth—appointed to the appeals court by Governor Pete Wilson 14 years ago—wrote a strongly worded majority opinion that rebuked the city of Garden Grove in its aggressive attempts to destroy 8 grams of marijuana it had confiscated from a motorist qualified to possess the narcotic under the state's Compassionate Use Act.
This column appeared in print as "The Mother, Her Teen Lover and Their Baby: Appeals court rejects decision to give child custody to a 10th grader."