Is a foster parent inevitably precluded from being treated as a de facto legal parent of a child? Not necessarily, ruled the Court of Appeals of Washington, Division 1, in In re Parentage and Custody of A.F.J., 2011 Westlaw 1833461 (May 16, 2011), rejecting a challenge brought by the child's biological mother, who is resisting parenting time for her former same-sex partner.
Mary and Jackie began dating in 2002. Jackie, unfortunately, developed a crack cocaine addiction, which made their relationship sporadic. Mary insisted that Jackie enter treatment, which she did, but she never successfully completed any program. It was also a distance relationship: Mary lived in Washington State and Jackie in California. During a period when their dating had ceased in 2005, Johnston, who had relapsed since her last treatment, became pregnant. She reached out to Mary for help and moved to Washington. Mary assisted Jackie with her pregnancy and resumption of treatment. When she wasn't in a treatment facility, Jackie lived with Mary. She suffered a relapse again in October 2005, went back into a treatment facility, and gave birth there in November. The child was given a name that included the surnames of both women.
Jackie continued to live in the treatment facility for a month after the child's birth, but Mary was allowed to take the child home with her a few times. Jackie decided to leave the facility without completing treatment, because she felt the facility was putting too many restrictions on Mary's ability to take the child home. Jackie rented an apartment for herself and the child, but didn't use it much, mainly staying with Mary.
When Jackie relapsed again at the end of Janujary, Mary contacted Child Protective Services out of her concern for the child's welfare, and the child was removed from the home but returned to Mary's care a few days later. The state initiated a dependency proceeding, and the court advised Mary to obtain a foster parenting license in order to have the child placed with her, which she did, officially becoming foster parent of the child in September 2006, having cared for the child throughout the licensing process. Mary accepted foster care payments from the state from September 2006 through April 2008, when payments lapsed. They resumed in February 2009, but Mary did not cash any of the checks from that point forward.
The state filed a termination petition against Jackie and the child's unknown father, and Mary sought a determination that she was a de facto parent, the proceedings being combined before one judge in King County Superior Court. The termination proceeding was put on hold pending a determination of Mary's status. Although the trial court decided that Jackie was a fit parent so there was no basis to grant non-parental custody to Mary, it also determined that Mary, having basically raised and cared for the child for most of its life up to that point, should be deemed a de facto parent. On that basis, the court ordered a temporary parenting plan for equally shared residential time and joint-decision-making, although Jackie, would have the final say if they disagreed about something. Mary was ordered to pay child support to Jackie as well as attorney fees. Mary appealed the fee award and Jackie appealed the designation of Mary as de facto parent.
The court of appeals rejected Mary's contention that Jackie, as the child's foster parent, could not be deemed a de facto parent. Although there are prior Washington decisions rejecting the status of de facto parent for a foster parent, they were all distinguishable in ways deemed decisive by the court. Most importantly, it found, Jackie had encouraged Mary to establish a relationship to the child and Mary had developed such a relationship and bonded with the child many months before being designated its foster parent. Therefore, the relationship was not based on money. The state agency, an intervenor in the case, argued that "as a general matter, allowing foster parents to be recognized as de facto parents undermines the dependency process and contravenes legislative intent to maintain the family unit," but the court was not persuaded:
"DSHS's concerns are legitimate," wrote Judge Dwyer for the court. "However, such concerns do not arise in a situation such as this, where a parent-child relationship between the individual seeking de facto parent status and the child preexisted the fostering relationship. In fact, the American Law Institute, after noting the above-stated reservations, nevertheless observes that an individual who served in a parental role toa child prior to becoming a foster parent to that child would likely qualify as a de facto parent." The court also rejected Jackie's argument that Mary had other statutory alternatives to becoming the child's legal guardian, finding that Mary could not have sought parental status under the Uniform Parentage Act "because she and [Jackie] were engaged in a same-sex relationship that is not contemplated by the UPA," and adoption could not have been completed in the brief time between the child's birth and the state's initiation of the dependency proceeding.
Having disposed of the objections, the court applied the five-part test that has been established under Washington law to determine de facto parenting status, ande found that the trial court had properly applied the test based on the factual record. "Each part of the test that must be met to establish that an individual is a de facto parent is met here," concluded the court. "Applying the de facto parentage doctrine to these unusual circumstances does not require us to extend the doctrine beyond its intended scope and does not open the floodgates of de facto parentage claims to those undeserving of such a classification. RCW 13.34.020 declares that 'the family unit is a fundamental resource of American life whicfh should be nurtured.' Our holding today is consistent with this public policy goal." The court found that recognizing Mary as a de facto parent "nurtures the family unit that the parties intentionally formed," concluding that Mary is one of the child's mothers, and "she should be recognized as such."
In a separate part of the opinion, the court rejected Mary's argument against the attorney fee award to Jackie, finding it to be "within the range of the evidence presented," and found no error in the trial court's determination that Jackie, as a "fit parent," would have final say on parenting decisions in case the women disagreed on some point.
The case evidently became a bit of a cause celebre, as it drew amicus briefs from the American Academy of Matrimonial Lawyers, the state's child welfare agency, Legal Voice, and the state bar's Family Law Section. Jackie was represented by the Olympic Law Group and the public defender's office. Mary represented herself on appeal.