In re Carvin v. Britain, No. 52151-9-I (Wash. App. 5/3/2004), 52151-9-I

Decision Date03 May 2004
Docket NumberNo. 52151-9-I,52151-9-I
PartiesIn re the Parentage of L.B., minor SUE ELLEN CARVIN, Appellant, v. PAGE BRITAIN, Respondent.
CourtCourt of Appeals of Washington

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In re the Parentage of L.B., minor
SUE ELLEN CARVIN, Appellant,
v.
PAGE BRITAIN, Respondent.
No. 52151-9-I
Court of Appeals of Washington, Division One.
Filed: May 3, 2004

Appeal from Superior Court of King County. Docket No: 02-5-02333-0. Judgment or order under review. Date filed: 03/19/2003. Judge signing: Hon. Michael J Trickey.

Counsel for Appellant(s), Janet Marie Helson, Columbia Legal Services, 101 Yesler Way Ste 300, Seattle, WA 98104-2528.

Patricia S. Novotny, Attorney at Law, 3418 NE 65th St Ste a, Seattle, WA 98115-7397.

Counsel for Respondent(s), Gayle A. Murray Brenchley, Attorney at Law, PO Box 17713, 1734 NW Market St, Seattle, WA 98107-5224.

Amicus Curiae on behalf of Justice for Children Project, Katherine Federle, Ohio St. Michael Moritz College of Law, 55 W. 12th Avenue, Columbus, OH 43201.

Angela Lloyd, Ohio St. Michael Moritz College of Law, 55 W. 12th Avenue, Columbus, OH 43201.

Raegen Nicole Rasnic, Attorney at Law, 1301 5th Ave Ste 3401, Seattle, WA 98101-2630.

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Amicus Curiae on behalf of American Academy of Matrimonial Lawyers, Leslie Cooper, ACLU — Lesbian and Gay Rights Proj, 125 Broad Street, 18th Floor, New York, NY 10004.

H. Michael Fields, Attorney at Law, 207 E Edgar St, Seattle, WA 98102-3108.

Amicus Curiae on behalf of American Civil Liberties Union, Aaron Hugh Caplan, Attorney at Law, Aclu of Washington, 705 2nd Ave Ste 300, Seattle, WA 98104-1799.

Amicus Curiae on behalf of National Center for Lesbian Rights, Laura Kristine Clinton, Preston Gates & Ellis LLP, 925 4th Ave Ste 2900, Seattle, WA 98104-1158.

Courtney Joslin, National Center for Lesbian Rights, 870 Market St., #570, San Francisco, CA 94102.

Shannon Minter, National Center for Lesbian Rights, 870 Market St., #570, San Francisco, CA 94102.

Jamie D. Pedersen, Preston Gates & Ellis LLP, 925 4th Ave Ste 2900, Seattle, WA 98104-1158.

KENNEDY, J.


Sue Ellen Carvin brought this action against Page Britain, the biological mother of L.B., seeking to establish Carvin's co-parentage of L.B., who was conceived by artificial insemination during the women's 12-year intimate domestic relationship. Carvin seeks to establish her co-parentage under the Uniform Parentage Act, which, she contends, must be liberally construed to permit her claim in order to be constitutional.

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Alternatively, Carvin seeks status as a de facto or psychological parent under the common law of Washington. As an additional alternative, she seeks visitation rights with L.B. under Washington's third-party visitation statute, RCW 26.10.160(3). Carvin also seeks to have a guardian ad litem appointed for L.B.

After Carvin filed her complaint, Britain married the sperm donor, a gay friend of the parties named John Auseth. Following the marriage, Auseth signed an acknowledgement of paternity, and the child's birth certificate was amended to name him as the child's biological father. Britain contests Carvin's legal right to bring the action, and also contends that John Auseth is a necessary party to the action under CR 19.

The trial court ruled that Carvin has no cause of action and dismissed her petition. Accordingly, the court found it unnecessary to rule on the questions of whether John Auseth is a necessary party and whether a guardian ad litem ought to be appointed for L.B. Carvin appeals.

We agree with the trial court that under the plain language of the Uniform Parentage Act as amended in 2002, Carvin has no cause of action. We decline to address Carvin's constitutional claims because we conclude (1) that she has stated an action for recognition as a de facto or psychological parent under the common law of Washington, and (2) that the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) does not, on the facts of this case, bar her action for third party visitation. Accordingly, we reverse in part and remand for such further proceedings as shall be consistent with this opinion. Because we hold that L.B. is a necessary party to a common-law action to determine her parentage, we specifically direct that following our remand, the trial court shall promptly appoint a guardian ad litem for L.B. and that the guardian ad litem be served with and answer Carvin's petition. We refer Britain's contention that the sperm donor, John Auseth, became a necessary party to the action when she married him and placed his name on the child's birth certificate as the biological father, back to the trial court which has not yet ruled on the motion. We decline to grant Britain's request that we direct the trial court to adjudicate that John Auseth is L.B.'s legal father. Auseth has not sought to intervene in the lawsuit, and accordingly has not requested any affirmative relief in the action. Moreover, Britain's request for affirmative relief on his behalf is raised for the first time on appeal. And finally, should he hereafter be joined as a party, either permissively or as an indispensable party, there are questions of both fact and law that will need to be addressed before his legal status can properly be adjudicated.

FACTS

Sue Ellen Carvin and Page Britain became romantically involved in 1989, and that same year began living together in an intimate domestic relationship. The two were still together when Britain conceived L.B. in 1994, by means of artificial insemination performed by Carvin, who used a syringe containing sperm donated by a gay male friend, John Auseth. When he agreed to act as the sperm donor, Auseth moved in with Carvin and Britain. The three of them went to counseling and discussed whether, if Britain were to become pregnant, Auseth should play any ongoing role in the life of the child. Although Carvin and Britain dispute the circumstances, Auseth left soon after L.B. was conceived, moving to California. He had no further contact with the parties and played no role in the support and rearing of L.B. until after Britain and Carvin separated.

During Britain's pregnancy, Carvin and Britain both attended prenatal appointments, child-birthing classes, and counseling sessions, in anticipation of the birth. Carvin sent out pregnancy announcements to friends. Britain and Carvin were given joint baby showers. L.B. was born on May 10, 1995. Carvin was present during the birth and was the first to hold L.B. after she was delivered.

Although Britain disputes that she and Carvin planned the pregnancy together, she admits that Carvin accompanied her to the hospital to receive the pregnancy results, and that Britain informed her labor assistant that Carvin would be `part of the birthing process.' L.B.'s baby book shows

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that Britain changed the `father' entries to `mother' and wrote information about Carvin in their place. Britain and Carvin chose to give L.B. a name that honored each of their families.

Britain disputes that she ever considered Carvin to be her `partner.' However, her declaration illustrates that she and Carvin continued their domestic relationship after L.B.'s birth and that they ran their household together. They `brainstormed' together about how to improve their financial situation. They also discussed parenting issues, such as how much or how little to discipline L.B., and whether the child would be allowed to sleep in their bed. Britain admits in her declaration that Carvin transported L.B. to and from her daycare so that Britain could be at work early, and that Carvin contributed financially at some level to L.B.'s daycare and school expenses. Britain was, at one time, open to Carvin adopting the child.

Although Britain also disputes, notwithstanding her entries into L.B.'s baby book, that she ever considered Carvin to be L.B.'s `mother,' the record reflects that Carvin provided much of the child's `mothering' during the first six years of her life. Carvin produced numerous declarations from friends and family of both Carvin and Britain, as well as school officials. The declarations reflect that Carvin was L.B.'s primary caretaker during her infancy and preschool years, and that Carvin was the primary parent to deliver L.B. to and from daycare, school, sports practices and games, and that she attended L.B.'s school events. It is undisputed that when she learned to talk, L.B. referred to Carvin as `Mama' and to Britain as `Mommy.' Moreover, Carvin was listed as L.B.'s `mother' on school registration forms. Carvin's declarants state that Carvin was a good mother to L.B., that Britain and Carvin held themselves out as co-parents, and that Britain and Carvin were a stable couple for 12 years. Two close friends declare that, prior to the pregnancy, Carvin and Britain openly discussed with their friends their plans to have a child together. Britain states that she became frustrated with Carvin's inability to keep a job, the couple's financial insecurity, and her belief that Carvin expected her to pay for everything while she, Carvin, `enjoyed the glory of being a `mom.'' Britain says that sometime in 1999, she finally agreed to Carvin's request for Carvin to stay at home full time, out of sheer exhaustion and duress. She also states that she was unhappy in her relationship with Carvin during the late 1990s. Some two years later, in 2001, Britain decided to separate permanently from Carvin.

Following the separation, Britain initially agreed that she and Carvin would share the parenting of L.B. Britain would drop L.B. off at Carvin's house early in the morning, so that she could get to work on time. Britain states that she came to believe that these visitations were disruptive to L.B.'s stability. She declares that Carvin did not keep to a regular bedtime and dinner schedule, and often delivered L.B. to school tardily or not at all. Britain also states that L.B. had morning vomiting before being delivered to Carvin, that she experienced anxiety and tantrums, and that she wet the bed. And she asserts that Carvin continued to be financially...

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