Complex child case shines spotlight on paternity law

FORT WORTH -- Nearly every morning for three weeks, Hope McClendon has been protesting outside the downtown Family Law Center, upset over a judge's ruling involving the placement of her granddaughter.

"We are out here because Judge Hennigan of the 324th District Court has decided to give a 2-year-old toddler girl, my granddaughter, to my ex-boyfriend," said McClendon, 43, of Fort Worth. "He told the judge that, while in a relationship with me for nine years, he was sleeping with my daughter while she lived on the streets and was on drugs and homeless."

As with many family court cases, a closer look at the file reveals a tangled web of accusations, innuendoes and contradictory statements. But most notably, the case raises questions about paternity and whether a man has to share a child's genetics to be named the father.

In this case, state District Judge Jerry Hennigan ruled that DNA isn't relevant.

He removed the little girl, whose mother is dead, from McClendon and placed her with McClendon's ex-boyfriend, Devery Gladney -- a man who doesn't share the child's genetic code but who said he loves her as his own.

"I knew the court was going to see," said Gladney, 45, who acknowledges that he had romantic relationships with both the child's mother and grandmother. "I'm her father. I have been in her life since Day One. At this point, I don't know or don't need to know the results of the [DNA] test."

Hennigan declined to comment on the case because it is pending.

But legal experts said that, while the case is unusual, paternity statutes give judges discretion in certain instances, especially if the child has been in the man's life and he has acted as the father.

"You have a man who has publicly held himself out as the child's father," said Elizabeth Durso Branch, a Texas attorney board-certified in family law who reviewed the court documents. "This little girl called him Daddy. The judge is looking at all of the laws and all of the factors, and he had a lot to look at. ... He is the one who saw it and the one who heard it, and he was the one who was persuaded that this was the right decision to make."

"It really is very interesting," Branch said. "You have a lot of people who love this little girl. That is the saddest thing in family law cases: People are fighting over love."

A troubled mother

About the only thing McClendon and Gladney seem to agree on is that the toddler's mother, Mariah McClendon, had her share of problems.

She was a convicted prostitute who suffered from mental illness and drug addiction, according to public records and interviews with family and friends. At times, she lived on the streets or in shelters.

On Feb. 2, 2008, Mariah, 25, gave birth in a Fort Worth hospital to a baby girl, Cassandra "Miracle" Hope McClendon -- or "Mira" for short.

With Mariah unable to care for the child, McClendon said Child Protective Services recommended that she raise the baby, whose father was not known.

Gladney, however, contends that McClendon -- who was also his former partner -- knew that he had had a relationship with her daughter and was possibly Mira's father. He said he wanted to sign the child's birth certificate at the hospital but did not because McClendon objected.

Marissa Gonzales, a CPS spokeswoman, said the agency never took custody of the baby, so it never officially "placed" Mira with anyone.

"Custody was never ours to grant," Gonzales said. "In a situation like that, more than likely what happened is that there was some sort of voluntary agreement between the mother and grandmother."

In court documents and in interviews, Gladney and McClendon each claim that the baby lived with them during the first year of her life.

"When she came home from the hospital, she came to my house," said Gladney, adding that he shares a home in Arlington with his mother, Naomi. "Me and my mom did everything for my daughter -- everything."

McClendon said that Gladney's mother occasionally baby-sat Mira but that the child never lived with them. She said Mira was only in Gladney's life because he was her longtime boyfriend and business partner at a therapeutic massage center in Forest Hill.

"We were in a relationship, and that is why the baby was in his life," she said.

Gladney maintains that McClendon, Mariah and Mira all treated him as the child's father. "The mother said I was the father, and I believed I was the father," Gladney said.

In fact, Gladney said, in July 2008 -- unbeknownst to McClendon -- he and Mariah created and signed an acknowledgment of paternity, which stated that he was Mira's father and responsible for her care and upbringing.

The next month, Mariah was hit by a car and killed while walking along northbound U.S. 175 at 4:15 a.m.

The dispute begins

In July 2009, nearly a year after Mariah's death, Gladney, McClendon and Mira spent a few days in Pulaski, Ill., visiting McClendon's relatives. A couple of weeks later, Gladney returned home, but McClendon and Mira stayed in Illinois.

In the following days, McClendon said she broke up with Gladney and allowed Mira to stay in Illinois with her mother and daughter while she got her affairs together in Texas. (Gladney claims they broke up before Mira was born.)

When she returned to Texas without Mira, Gladney said, he believed that McClendon was keeping Mira from him. He said she later sent him a text message that read: "I'm sorry for all of it. If u give me 10,000 for mira. I will bring her back.I promise, u know she's 2 much for me She belongs with u, thats the way mariah would...," according to a court document.

McClendon said that if a text message came from her phone, Gladney sent it to himself to set her up because he was angry.

"We broke up," McClendon said. "When you break up with people, you don't generally give your children to them. I'm gone and my child is going with me. That is the way life is, or so I thought."

On at least one occasion, Gladney traveled to Illinois to try to get Mira from McClendon's relatives but was unsuccessful.

For the next year, McClendon said, she split her time between Texas and Illinois. Sometimes she would bring Mira back to Fort Worth; other times they would spend weeks together in Illinois.

Gladney, she said, wasn't in her or Mira's life during this period.

'How is this possible?'

In late 2009 or early 2010, Gladney said, he presented the attorney general's office with Mariah's death certificate, the acknowledgment of paternity, and receipts showing that he and his mother fed, diapered and clothed Mira during the first 18 months of her life.

In February, an associate judge assigned to hear attorney general cases signed an order amending Mira's birth records, making Gladney her father and changing her surname to Gladney. The order named Gladney and his mother, Naomi Gladney, as joint managing conservators. Gladney was ordered to pay $512 a month in child support to his mother.

McClendon, who was still caring for Mira with help from her family in Illinois, said she was shocked when she found out about the order -- and believes the acknowledgment of paternity is fake.

"How can someone be paying child support for a child that, first of all, is not theirs and, second of all, is with me?" she asked. "This is my ex-boyfriend. How is this possible?"

On June 18, Gladney and his attorney, J.D. Milks, filed a petition in state district court, asking law enforcement authorities to find Mira and bring her to Gladney and his mother. The case was assigned to Hennigan, who, after a hearing in which McClendon wasn't present, ruled that Gladney and his mother were entitled to immediate possession of the child.

McClendon, who still had Mira, challenged the ruling and retained attorney John Wolffarth, who asked the judge for a paternity test -- a request granted on Aug. 16.

Gladney's attorney filed a motion urging the judge not to consider the DNA paternity tests. He argued that once a person has acted as a parent and bonded with a child, the child should not be traumatized by learning that the father she has known all her life is not her father.

On Sept. 13 -- without looking at the DNA results -- the judge agreed and ordered the child placed with Gladney. The judge said he would consider giving McClendon grandparent access after CPS concludes an investigation.

Among other things, the judge stated that McClendon was not as credible as Gladney and that he was concerned by the text message. "It does seem that her offer is perilously close to selling a child," the judge wrote in the court's rendition of its decision.

Furthermore, Hennigan stated that he is concerned because there is no reasonable chance that another man will be established as the father.

Attorney Sharon Giraud, a board-certified family law specialist, said the case is notable, in part, because it involves a child's grandmother rather than mother.

"But in any case, the court always looks at the best interest of the child," she said. "That being paramount, this child has had a relationship with this man and looks at this man as being her father."

McClendon said she was crushed by the ruling because the DNA test results -- a copy of which was obtained by the Star-Telegram -- show that Gladney is not Mira's biological father. She said she plans to appeal.

"He didn't even leave me with any visitation, and this child has been with me since she was born," she said.

Gladney called the judge's ruling the "best day of my life" and said he has been making every moment with Mira count.

"She came right to me," he said. "I've had her ever since, and I'm going to keep her. I love her -- that's my little girl."

Melody McDonald,