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.