More on WA De Facto Parentage

This hooks back to an earlier post about one of two de facto parentage cases decided by the WA Supreme Court just before Thanksgiving.   In that earlier post I began to discuss one of the cases (In Re BMH).  But there’s an interesting dissent in that case and there’s a second case–In Re AFJ–which also has a dissent.   Beyond that, much to my surprise the Seattle Times made the question of de facto parentage the subject of their lead editorial today.  All of this makes me return to the topic.   And indeed, it may take more than one additional post to get through all this.

I will not rehearse the discussion of the main opinion in BMH as you can just go read the earlier post.   And before I consider the dissents–which raise some similar issues in both cases–I want to walk through AFJ.    If I have space after that in this post, I’ll get to the Seattle Times editorial.   (Looks like that will be in the next post–sorry.)

AFJ has atypical facts.   It involves two women, but it’s not a lesbian-couple-who-decide-to-raise-a-child case.   Mary Franklin and Jackie Johnston had an on again/off again relationship.  It was, in the words of the court, “complicated by the distance between their primary homes and Johnston’s drug use.”   They lived together only sporadically.

At one time while they were separated Franklin, who was “heavily using crack cocaine,” became pregnant.   She called Franklin for help and Franklin responded.   In 2005, while Johnston was in an in-patient treatment program, AFJ was born.   (The “F” and the “J” stand for “Franklin” and “Johnston.”)

Within a few months of when the child was born, Franklin came home (I think the women were living together at this point) and found Johnston passed out with a broken crack cocaine pipe and AFJ on the bed.   Franklin called Child Protective Services (CPS).   A few days after that Johnston requested that AFJ be returned to Franklin’s care.   CPS did so, on the condition that Franklin pursue a foster parent license.   (I think the reason for this was that at this point Franklin had no legal relationship to the child and so there was no other basis to place the child in her care.)   Franklin attempted to decline payments ordinarily made to foster parents, but the social workers told her she had to accept them.

In early 2007 the state filed a petition to terminate Johnston’s parental rights.   Later that same year (I think when AFJ must have been around two) Franklin sought a declaration that she was a de facto parent.

These legal proceedings were initially determined in May, 2009 (by which time the AFJ must have been about three and a half.)   The trial court found that Franklin did qualify as a de facto parent but also found that Johnston had made great progress, which meant that the court did not terminate her parental rights.   Thus, under the court ruling, AFJ now had two legal parents–Johnston and Franklin.   Appeals followed.   In particular, Johnston challenged the ruling that Franklin was a de facto parent.   This is the appeal that generated the Supreme Court’s opinion.

Washington law requires that a person seeking status as a de facto parent prove four things.   They are

1.   that the natural or legal parent consented to and fostered the parent-like relationship between the petitioner and the child;

2.  that the petitioner and the child lived together in the same household

3.  that the petitioner assumed the obligations of parenthood without expectation of financial compensation and

4) that the petitioner was in the parental role for a sufficient length of time.

In addition, only those who have “fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in a child’s life” can be recognized as a de facto parent.    (You can find the court’s precise statement of the test at pages 4 and 5.)

Johnston does not dispute factor 2 but does dispute the rest.  She also contends that Franklin’s status as a foster parent precludes her from invoking the test at all.

Ultimately the Court walks through each of the disputed elements, reviewing the evidence.   For the moment I won’t track those arguments–we can always discuss them as they seem  important.   A couple of points seem particularly key.   First, Franklin established a relationship with the child before she became a foster parent.    That’s particularly important for 3.   Second, while most foster parents probably wouldn’t be able to invoke de facto status, the de facto test requires scrutiny of individual circumstances.    Thus, you cannot simply say foster parent = not de facto parent.   And indeed, this is the case–perhaps the only case–that shows that a foster parent can be a de facto parent.

Again I’m going to wrap up this post even though there is more to say.  (I do live in fear of the teal deer.)     But I want to close with one observation about the de facto doctrine generally.   It seems to me it rests on an assumption that a bonded parent-child relationship is a special thing.

I think this is a crucial point.   Not everyone agrees that there is some particular, recognizable parent-child relationship.  It seems to me, at least, that some who comment here would not agree that there are qualitatively different relationships that can be identified and then recognized.   If you take that perspective then I can see that a de facto parent test makes little sense and has no real boundaries.

Even though it may be very difficult to articulate what the elements of a bonded parent-child relationship are, I think these relationships do exist and can be identified.  Indeed, in real life children often know perfectly well which people are their parents (here in the functional sense) and which people are non-parental caretakers.   It’s a problem in law when a test is “I know it when I see it,” yet sometimes that may be the best we can do.  To deny the existence of these relationships just because they are hard to define seems to me the less wise course.




14 responses to “More on WA De Facto Parentage

  1. I do not believe the de facto parent doctrine should apply here. Franklin assumed the parental role because she was requested to help Johnston while Johnston was temporarily incapacitated. imagine a parent with cancer who requests that the child be left at the home and in the care of the next door neighbor with whom the child has a good relationship. It may not even be known at that time whether the parent wilil recover. When the parent recovers, they must forever share parental status with the neighbor?

    • what this means is that a parent in dire circumstances who reaches out for help with their child, is at risk for having their diminished parental status forever. very dangerous situation. I can see how mothers going through a hard time, perhaps having postpartum depression or something, might be afraid to reach out for some much needed help, which could lead to dangerous consequences.

      • I would not reach the same conclusion. You can reach out for help all you want and you can retain parental rights unencumbered. What you cannot do is agree to co-parent a child with someone, allow them to serve in that role for a significant period of time, and then simply sever the relationship between that person and the child. I think there has to be a limit on what the parent can do in order to protect the child.

        • im using your words. you wrote that when she got pregnant she “called franklin for help.” where do you draw the line between reaching out for help and inviting someone to be a parent.

          • I really do think there is a line there, though I haven’t explained it well and I think it might be hard to draw in some instances. You can initially call someone to come and help and they are pretty clearly a helper. But if you ask them to stay indefinitely and take permanent responsibility, I think you’ve crossed the line. The opinion says “The two women decided to parent the expected child together.” (page 2). And then Franklin cared for the child in that role for over three years.

            I think when you do that–when you decide to parent the child with someone–and when that actually happens (because intention alone is not enough for me) then you have crossed the line and the person is no longer just helping out. Now it may be hard to prove that decision–but Franklin did prove it to the judge’s satisfaction. There’s a summary of some of the testimony at page 9. (And giving the child Franklin’s last name would support that idea. You don’t usually do that for someone who is just helping out. First name, maybe. Last name, not so much.)

            Though I do think this question can be close, I don’t think it is in this particular case. And while I think Franklin’s actions are quite important, so are Johnston’s. At the very least it seems to me she actively acquiesced to Franklin developing a parental role in the child’s life. I just don’t think you can act like that and then toss the person out of the child’s life a few years down the road. And it doesn’t strike me that it really means you cannot call for help as long as you maintain clarity about who is ultimately responsible.

    • Two points in response–one more important than the other.

      The less important point: I don’t think that is a fair characterization of the facts. Johnston was pregnant and turned to Franklin. (I’m assuming that the pregnancy is not the incapacity you are referring to? If I’m wrong in that assumption than this will be off target.) That means that Franklin forged a parent-like relationship to the child. When Johnston became incapacitated because of drugs, Franklin did what I think we’d all hope any co-parent would do–she stepped up. She only became a foster parent because the state insisted that was the only way to have the child remain with her. (I don’t think she should be in a worse position for having done as the state told her.) In other words, she was not at neighbor–she was a coparent (with Johnston’s approval) before the incapacity.

      The more important point: I think you are more concerned about Johnston’s rights while I am more concerned about the child’s well-being. The point of de facto is to try to get the right balance between these two things. I would put more emphasis on the fact that Franklin is the only steadily functioning adult with whom the child has a parent-like relationship. To take the child away from her in order to ensure that Johnston’s rights are protected seems to me to be giving too much credit to the adult’s interests and not enough to the child’s.

      • That would be a horrible outcome. but is it allthat different from other long term fostercare situations? what rights do you think foster parents should have? (and by incapacitated yes i am,refrring to the drug use)

        • Two things: First and most specifically, once Johnston returned to competence the foster parent, here Franklin, would lose all rights/status. Franklin had to have a different status–a legal parent–in order to maintain her relationship with the child.

          More generally, foster parents aren’t meant to be long term (though they sometimes are). They take the place of legal parents for a time and we hope that in time the legal parent is reunited with the child. But sometimes the period of time can be long. And sometimes kids get bounced to many foster homes, none of which are meant to be permanent. The fact that foster parents do not have a permanent place in a child’s life–and aren’t meant to–often colors the relationship. Some foster kids are relieved to finally be adopted by someone–because then they have “forever family” whereas before they had only a temporary home. It makes a big psychological difference to some. But you can only allow that (in a more ordinary case) when you have given up on the legal parent, which we don’t want to do that quickly. Hence, foster care can be a long period of limbo.

          This case is unusual because of the relationship between the legal parent and the foster parent.

  2. I am not sure why franklin could not have continued to be a foster parent?

  3. side note- the editorial at the end seems to emphasize that Franklin is a nurse as if implying that is somehow relevant as to why she would be a good parent…. now I love nurses as much as the next gal, i am one after all, but being a nurse does not mean that one is necessarily a good parent…. now i know this is not the focus of the discussion here but can’t help sticking it in.

  4. you also wrote that franklins parental relationship was estsblished prior to receiving foster parent status, but that doesn’t appear to be so- the reason she was required to become a foster parent is precisely because she had no relation. an aunt or grandmother would have been less of a legal stranger than franklin.

    • Ah, stuck on my own language. I should have said that franklin established a psychological/social parental relationship before receiving foster status. It’s quite true that she had no legal parental status before becoming a foster parent–and that indeed is why the state insisted she become one. But to me, the existing social relationship is all-important. She was, in a real and concrete way, acting as a parent to the child before she became a foster parent. No one else(grandmother, aunt, etc.) had that kind of relationship with the child and that was why it was best for the child to remain with Franklin.

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