In re Parentage And Custody of A.F.J.

• Decision Date: 16 May 2011
• Docket Number: 63982–0–I.,Nos. 63919–6–I,s. 63919–6–I
• Citation: 260 P.3d 889,161 Wash.App. 803
• Parties: In re Parentage and CUSTODY OF A.F.J., a minor child.Mary Franklin, Appellant/Cross–Respondent,v.Jackie Johnston, Respondent/Cross–Appellant.
• Court: Washington Court of Appeals

161 Wash.App. 803

260 P.3d 889

In re Parentage and CUSTODY OF A.F.J., a minor child.Mary Franklin, Appellant/Cross–Respondent,

v.Jackie Johnston, Respondent/Cross–Appellant.

Nos. 63919–6–I

63982–0–I.

Court of Appeals of Washington, Division 1.

May 16, 2011.

H. Michael Finesilver, Attorney at Law, Jonathan Mark Weiss, Law Office of J. Mark Weiss PS, Seattle, WA, Peter S. Lineberger, Attorney at Law, Spokane, WA, for Amicus Curiae, American Academy of Matrimonial Lawyers.Trisha L. McArdle, Office of the Attorney General, Seattle, WA, Sheila Malloy Huber, Carrie Hoon Wayno, Office of the Attorney General, Olympia, WA, for Amicus Curiae, DSHS.David J. Ward, Legal Voice, Seattle, WA, for Amicus Curiae, Legal Voice.Ruth Laura Edlund, Wechsler Becker LLP, Seattle, WA, for Amicus Curiae, WSBA Family Law Section.Mary Franklin, Seattle, WA, for Appellant/Cross–Respondent.Lori Larcom Irwin, King Co. Superior Ct./Dependency CASA, Seattle, WA, for Guardian Ad Litem, A.F.J.Dennis John McGlothin, Robert Joseph Cadranell, II, Olympic Law Group PLLP, Carol J. Ellerby, Public Defenders Assoc., Seattle, WA, for Respondent/Cross–Appellant.

OPINION PUBLISHED IN PART

DWYER, C.J.

[161 Wash.App. 806] ¶ 1 This case concerns the interplay between foster parenting and the common law de facto parentage doctrine. Jackie Johnston, the biological mother of a newborn, encouraged Mary Franklin, Johnston's intimate partner, to develop a parent-like relationship with the child. Subsequently, the State initiated a dependency proceeding on the child's behalf and Franklin became the child's foster parent. Finding both that the de facto parentage doctrine is applicable in these circumstances and that the five-part test announced by our Supreme Court is met in this case, we affirm the trial court's determination that Franklin is the child's de facto parent.¹

I

¶ 2 The facts are these.² Mary Franklin, born in 1959, and Jackie Johnston, born in 1966, began dating in 2002. During the course of their relationship, Johnston became addicted to crack cocaine. As a result of Johnston's addiction, the couple's relationship was difficult and sporadic. At Franklin's insistence, Johnston entered treatment programs on several occasions. None were successfully completed. The women's relationship was made more difficult because Franklin lived in Washington while Johnston lived in California.

¶ 3 In early 2005, during a period when the couple was separated, Johnston relapsed and became pregnant with A.F.J. Johnston reached out to Franklin for help and moved to Washington. Shortly after Johnston and Franklin reunited, Franklin learned that Johnston was pregnant. Franklin assisted Johnston in obtaining prenatal care and drug addiction treatment. During the course of the pregnancy, when Johnston was not in treatment, she lived primarily with Franklin.

¶ 4 In October 2005, Johnston, still pregnant, relapsed again. Johnston was then admitted into the Perinatal Treatment Services (PTS) facility in Tacoma, where she remained until after A.F.J.'s birth. A.F.J. was born on November 20, 2005. His full given name includes the surnames of both Franklin and Johnston.

¶ 5 Johnston and A.F.J. resided at PTS until late December, although Franklin took A.F.J. home with her on occasion. Johnston later reported that, because PTS would not allow Franklin to take A.F.J. home with her more frequently, she left PTS earlier than recommended.

¶ 6 Upon leaving PTS, Johnston rented an apartment for the month of January. However, she used the apartment for only a short time. Instead, Johnston and A.F.J. stayed with Franklin over the December holidays and lived with Franklin for most of the month of January. Franklin and Johnston together attended A.F.J.'s doctor appointments. Franklin participated in the decision to have A.F.J. circumcised.

¶ 7 At the end of January, about one month after leaving PTS, Johnston had a severe relapse. Franklin, concerned about the welfare of A.F.J. and Johnston, called Child Protective Services. A.F.J. was removed from the home. He was, however, returned to Franklin's care several days later. The State initiated a dependency action on A.F.J.'s behalf.

¶ 8 In April 2006, the trial court required Franklin to become licensed as a foster parent in order to maintain care of A.F.J. Franklin procured the requisite license, becoming A.F.J.'s foster mother in September 2006. She cared for A.F.J. throughout the licensing process.

¶ 9 Franklin accepted foster care payments from September 2006 through April 2008. After April 2008, the foster care payments ceased; however, they were resumed in February 2009. Franklin did not deposit any of the checks sent to her after April 2008.

¶ 10 The State filed a termination petition against both Johnston and A.F.J.'s unknown biological father, who did not respond to the petition. His rights were terminated by default.

¶ 11 Franklin then filed petitions requesting either nonparental custody of A.F.J. or the establishment of de facto parentage. The nonparental custody, de facto parentage, and dependency proceedings were linked and accepted into the Unified Family Court. Subsequently, the termination proceeding was continued pending the resolution of Franklin's nonparental custody and de facto parentage actions.

¶ 12 A trial was then held on the nonparental custody and de facto parentage actions. In April 2009, at the conclusion of trial, the court made numerous oral findings and rulings. In May 2009, the trial court entered several written orders consistent with the court's prior rulings. The trial court entered findings of fact and conclusions of law regarding nonparental custody and de facto parentage, wherein the trial court found that Johnston was a fit mother. The trial court concluded that Franklin did not prove either that Johnston was an unfit mother or that it would be to A.F.J.'s detriment to be placed in Johnston's custody, and, as a result, there was no basis to grant nonparental custody to Franklin. The trial court also concluded that Franklin had demonstrated that she was A.F.J.'s de facto parent.

¶ 13 The trial court ordered a temporary parenting plan that provided for the parties to equally share residential time and to engage in joint decision-making. Johnston was named the default decision-maker in the event that they were unable to make joint decisions. The trial court also ordered Franklin to pay $215 per month in child support to Johnston, granting a deviation from the child support schedule based on the parties' equal residential arrangement. In addition, the trial court awarded $20,000 in attorney fees to Johnston.

¶ 14 Franklin appeals, raising issues regarding the award of attorney fees, the order of child support, and the parenting plan. Johnston cross appeals, contending that Franklin cannot be A.F.J.'s de facto parent.

II

¶ 15 We first consider the decisive issue in this case. Johnston contends on cross appeal that the trial court erred by finding that Franklin, A.F.J.'s foster mother, was A.F.J.'s de facto parent. We disagree.³

¶ 16 Our Supreme Court first recognized the de facto parentage doctrine in In re Parentage of L.B., 155 Wash.2d 679, 122 P.3d 161 (2005). There, the court examined whether a biological mother's former lesbian partner, who was neither biologically related to the child nor an adoptive parent of the child, had standing to petition for a determination of coparentage of the child. L.B., 155 Wash.2d at 683–84, 688–89, 122 P.3d 161. The two women at issue therein were in a long-term committed relationship when the child was born, the decision to add the child to the relationship was a joint decision, the women held themselves and the child out to the public as a family, and the women co-parented the child until their relationship ended when the child was six years old. L.B., 155 Wash.2d at 683–84, 122 P.3d 161.

¶ 17 After their relationship ended, the biological mother terminated all contact between her former partner and the child. The former partner petitioned for establishment of parentage, asking that she be declared the child's legal parent pursuant to the Uniform Parentage Act (UPA), chapter 26.26 RCW; that she be declared a parent pursuant to equitable estoppel principles or recognized as a de facto parent; or that she be allowed statutory third party visitation rights. L.B., 155 Wash.2d at 685, 122 P.3d 161.

¶ 18 Relying on its equitable powers and recognizing the common law status of a de facto parent, our Supreme Court determined that the former partner had standing to petition for a determination of co-parentage if she could establish that she had a de facto parent relationship with the child. L.B., 155 Wash.2d at 683, 122 P.3d 161. The court announced a common law remedy recognizing that, while attempting to give structure and predictability to [parentage] determinations, neither the UPA nor corresponding statutes defining parental rights and responsibilities purport to preclude the operation of the common law when addressing situations left unanswered after conducting a strict statutory inquiry. L.B., 155 Wash.2d at 696, 122 P.3d 161. While the UPA undeniably provides a statutory, and the most common, avenue by which courts adjudicate a person a parent in this state[,] ... it inevitably did not contemplate nor address every conceivable family constellation. L.B., 155 Wash.2d at 688 n. 5, 122 P.3d 161. Thus, the de facto parentage doctrine was needed to fill the interstices that our current legislative enactment fails to cover in a manner consistent with our laws and stated legislative policy. L.B., 155 Wash.2d at 707, 122 P.3d 161. The court explained that, until the time that the legislature chooses to act, it is the duty of the court to ‘endeavor to administer justice according to the promptings of reason and common sense.’ L.B., 155 Wash.2d at 707, 122 P.3d 161 (quoting Bernot v. Morrison, 81 Wash. 538, 544, 143 P. 104 (1914)).

¶ 19 The court then...