In re Parentage of J.B.R.

FILED

OCTOBER 23, 2014

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In re Parentage: ) No. 31703-0-111

)

J.B.R. )

DOB: 10/4/2000, )

)

Child, )

)

NATHANIAL A. YORK. )

(De Facto Parent) )

)

Respondent, . )

)

and ) PUBLISHED OPINION

)

LACEY SHOWS-RE )

(Mother) )

)

Appellant, )

)

and )

)

JAMES A. CANDLER, )

(Father), )

)

Defendant. )

LAWRENCE-BERREY, J. - In 2005, the Washington State Supreme Court adopted

the doctrine of de facto parentage. In essence, a nonparent petitioner may be recognized

as a legal parent if the petitioner establishes four factors. This case presents the issue of

No. 31703-0-111

In. re Parentage ofJB.R.

whether de facto parentage may be extended to a stepparent of a child with two legal

parents. We hold that the doctrine may be so extended if the stepparent petitioner

establishes the relevant four factors, which include establishing that both legal parents

consented to the stepparent being a parent to the child. We affirm the trial court's denial

of Ms. Shows-Re's motion to dismiss.

FACTS

J.B.R. was born to Lacey Shows-Re and James Candler on October 4,2000. The

parents were teenagers at the time of J.B.R.'s birth and broke off their relationship while

J.B.R. was an infant. For a combination of reasons, Mr. Candler stopped trying to visit

J.B.R. when she was about two years old. He had no contact with J.B.R. over the next 10

years.

Nathaniel York wasj1:1st out of high school when he began dating Ms. Shows-Re

in 2002. J.B.R. was about two years old. Mr. York treated J.B.R. as his child; J.B.R.

referred to him as her father. Ms. Shows-Re encouraged the relationship. Ms. Shows-Re

and Mr. York had a daughter, N.A.Y., while together.

Mr. York and Ms. Shows-Re ended their four-year relationship in May 2006.

N.A.Y. was an infant and J.B.R. was about six years old. Mr. York's visitation ofN.A.Y.

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and J.B.R. was sporadic for about two years. Mr. York claims that he sought visitation

with both girls but Ms. Shows-Re made it difficult.

Eventually, visitation became more regular with both children. By 2010, a regular

visitation schedule was implemented with N.A.Y. Ms. Shows-Re allowed J.B.R. to

accompany N.A.Y. on most of the visits. The parties dispute whether Mr. York ever had

J.B.R. without N.A.Y.

After a disagreement over visitation, Mr. York filed a petition for establishment of

a de facto parentage for J.B.R and a proposed parenting plan. At the time of the petition

in 2012, J.B.R. was 11 years old.

The court entered a temporary parenting plan for J.B.R. About one month later,

Mr. Candler responded to the de facto parenting petition and counterclaimed for

visitation.

The court appointed a guardian ad litem (GAL) to investigate and make a

recommendation as to whether J.B.R., then 12, would benefit from a continuing parent-

child relationship with Mr. York. The GAL recommended that the court declare Mr.

York de facto parent to J.B.R. and enter a split residential schedule with Ms. Shows-Reo

The GAL found that J.B.R. had a close relationship with Mr. York. The GAL also found

that J.B.R. considered Mr. York to be her dad and she wanted to spend as much time with

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him as possible. lB.R. believed she should have as much time with Mr. York as N.A.Y.

J.B.R. liked Mr. York's house and integrated with his family.

For Mr. York, the GAL found that he did not hav.e any financial gain in bringing

the action, that he loved lB.R. as a daughter and made no distinction between her and

N.A.Y., and that he wanted an enforceable right to see lB.R.

The GAL found that Mr. York had a lO-year relationship with J.B.R., minus the

two or so years where Mr. York only sporadically saw J.B.R. and N.A.Y. Visitation

appeared to be regular while Ms. Shows-Re and Mr. York were getting along and waned

when they were in conflict.

The GAL noted that Mr. Candler had no contact with lB.R. until the de facto

parenting action was filed. Mr. Candler's explanation for not being a part of J .B.R.' slife

was based on his troubled relationship with Ms. Shows-Reo He regretted the passive

approach and wanted to be a part of her life. When asked about her relationship with Mr.

Candler, J.B.R. was reluctant to commit to a prolonged relationship with Mr. Candler

and, while she realized that he was her biological father, she did not see him as her

"daddy." Clerk's Papers (CP) at 94. Her primary concern was getting regular visits with

Mr. York. In conclusion, the GAL stated that Mr. York demonstrated a parental

commitment to J.B.R. and that they had a close and bonded relationship.

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Ms. Shows-Re filed a motion to dismiss the petition for de facto parentage. She

contended that Mr. York could not seek the common law remedy because a potential

statutory remedy was available to him and J.B.R.'s two existing parents eliminated any

statutory parental right for Mr. York. The trial court denied the motion to dismiss. It

found that Mr. York had been integrated into J.B.R.'s life in the role of de facto parent as

defined by In re Parentage ofL.B., 155 Wn.2d 679, 122 P.3d 161 (2005). The court also

found that J.B.R. did not have two existing, fit parents in her life at the time that Mr. York

was introduced into J.B.R. 's life. The court compared the evidence to the requirements

for de facto parentage and concluded that Mr . York made a prima facie showing of de

facto parentage to defeat Ms. Shows-Re's motion. Ms. Shows-Re appealed the

interlocutory decision to this court. This panel has agreed to decide this case rather than

remand the interlocutory decision, because this case presents a controlling question of law

as to which there is substantial ground for difference of opinion, the resolution of which

will materially advance the ultimate termination of the litigation. RAP 2.3(b)(4).

ANALYSIS

Whether a stepparent may acquire de facto parent status when a child has two

parents is a question of law reviewed de novo. See In re Parentage ofMF., 168 Wn.2d

528, 531, 228 P.3d 1270 (2010).

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De Facto Parent Overview. In 2005, Washington adopted the doctrine of de facto

parentage. "[A] de facto parent stands in legal parity with an otherwise legal parent" and

is '" limited to those adults who have fully and completely undertaken a permanent,

unequivocal, committed, and responsible parental role in the child's life.'" L.B., 155

Wn.2d at 708 (quoting C.E. W. v. D.E. w., 2004 ME 43, 845 A.2d 1146, 1152. A person

petitioning for de facto parentage must show that (1) the natural or legal parent consented

to and fostered the parent-like relationship, (2) the petitioner and the child lived together

in the same household, (3) the petitioner assumed obligations of parenthood without

expectation of financial compensation, and (4) the petitioner has been in a parental role

for a length of time sufficient to have established with the child a bonded, dependent

relationship, parental in nature. Id. "Once a petitioner has made the threshold showing

that the natural or legal parent consented to and fostered the parent-like relationship, the

State is no longer 'interfering on behalf of a third party in an insular family unit but is

enforcing the rights and obligations of parenthood that attach to de facto parents.'" In re

CustodyofB.MH., 179 Wn.2d 224, 241, 315 P.3d 470 (2013) (quotingL.B., 155 Wn.2d

at 712).

Summary ofLeading De Facto Parent Cases. In L.B., Page Britain and Sue Ellen

Carvin had a same-sex partnership. L. B., 155 Wn.2d at 683. After five years, they chose

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to have a child through artificial insemination of Ms. Britain. Id. at 683-84. The couple

raised the child, L.B., for six years, during which time they held themselves out to the

public as a family. Id. at 684. Soon after their relationship ended, Ms. Britain took

measures to limit Ms. Carvin's access to L.B. Id. at 684-85. In November 2002, Ms.

Carvin filed a petition, which included a request to be declared a de facto parent. Id. at

685. A family court commissioner dismissed the petition and, on revision, the trial judge

affinned. Id. Our Supreme Court reversed. In reversing, the court adopted the above

four-part test, and emphasized that Washington courts must adopt and refonn the

common law to "address gaps in existing statutory enactments, providing that the

common law may serve to 'fill interstices that legislative enactments do not cover.'" Id.

at 689 (quoting Dep 't ofSoc. & Health Servs. v. State Pers. Bd., 61 Wn. App. 778, 783­

84,812 P.2d 500 (1991». "Washington courts have consistently invoked their equity

powers and common law responsibility to respond to the needs of children and families in

the face of changing realities." Id. Because Ms. Carvin lacked an adequate remedy at

law, and because Ms. Carvin met the four-part test, the court detennined that Ms. Carvin

had standing to request de facto parent status. Subsequent to this decision, the legislature

enacted RCW 26.26.116, which filled the statutory gap noted in L.B.

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MF. addressed the question of whether a stepparent could become a de facto

parent when there were two fit legal parents. There, M.F. was born to Patricia Reimen

and Edward Frazier in 1993. MF., 168 Wn.2d at 529. The couple separated soon

afterwards, and divorced in 1995. Id. Their parenting plan granted primary residential

placement to Ms. Reimen, and granted Mr. Frazier alternating weekends and some

holidays. Id. at 529-30. Mr. Frazier regularly met his child support obligations and

apparently exercised some visitation. Id. at 530. There never was an allegation that

either Ms. Reimen or Mr. Frazier were unfit parents. Id. Soon after the couple's

separation, when M.F. was about 14 months old, Ms. Reimen began dating John Corbin.

Id. They married in 1995 and had two sons. Id. The couple separated in 2000 and

divorced in 2002. Id. Mr. Corbin was granted visitation of his two sons about 45 percent

of the time. Id. Although the parenting plan was silent as to M.F., she usually

accompanied her brothers during visitations with their father. Id. In denying de facto

parent status, our Supreme Court first emphasized that M.F. had two existing parents with

established rights and duties. Id. at 532. The court secondly emphasized that Mr. Corbin

had an intertwined legislative/judicial remedy, which allowed him to petition for custody

(not de facto parentage), by demonstrating that placement with a fit parent would result in

actual detriment to the child. Id. at 533. Thus, after MF., the remedy of stepparent

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custody, although different and lesser than parental rights, was viewed as adequate, at

least in the context where there were two fit parents.

In November 2013, our high court issued two opinions that undercut the second

basis of MF. 's holding. In the first opinion, In re Custody ofA.FJ, 179 Wn.2d 179, 314

P.3d 373 (2013), the court held that a foster parent who qualified under the four-part L.B.

test could be granted de facto parent status, notwithstanding the availability of a

nonparental custody action. Id. at 190. The court reasoned that custodial status markedly

differed from parental status because custodial status conferred only a temporary and

uncertain right; if and when the biological parent became fit, the nonparent would have

no right to continue a relationship with the child. Id. at 186 (quoting In re Parentage of

J.A.B., 146 Wn. App. 417,426, 191 P.3d 71 (2008». In the second opinion, B.MH., the

court held that a former stepparent could be a de facto parent notwithstanding the

availability of a nonparental custody action. B.MH, 179 Wn.2d at 244. In that case, the

former stepparent had entered B.M.H.'s life at birth, following the death ofB.M.H's

biological father, and had undertaken an unequivocal and permanent parental role with

the consent of all existing parents. Id. at 243-44. In distinguishing B.MH. from MP., the

court noted that M.F.' s parents "shared parenting rights and responsibilities under a

parenting plan ... and that applying the equitable remedy [of de facto parentage] would

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'infringe[] upon the rights and the duties ofM.F.'s existing parents.'" Id. at 243 (some

alteration in original) (quoting MF., 168 Wn.2d at 532). The court stated: "[I]t is

'inevitabl[e] [that] in the field of familial relations, factual scenarios arise, which even

after a strict statutory analysis ... leav[e] deserving parties without any appropriate

remedy, often where demonstrated public policy is in favor of redress.'" Id. at 242 (some

alteration in original) (quoting L.B., 155 Wn.2d at 687). Continuing, the court stated:

"Where the legislature remains silent with respect to determinations of parentage because

it cannot anticipate every way that a parent-child relationship forms, we will continue to

invoke our common law responsibility to 'respond to the needs of children and families in

the face of changing realities.'" Id. at 242-43 (quoting L.B., 155 Wn.2d at 689). The

court clarified that MF. did not preclude all stepparents from pursuing de facto parent

status, and "there is no single formula for all stepparents." Id. at 243. The court

summarily dismissed the "available remedy" argument by stating: "Precluding any

individual from petitioning for de facto parentage because he or she can file for

nonparental custodY,would obliterate the de facto parentage doctrine because any person

not recognized as a parent may seek nonparental custody." Id. at 244.

Application ofLaw to Facts. Ms. Shows-Re challenges Mr. York's standing to

petition for de facto parentage. First, she contends that the petition is available only for

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persons who have no other statutory remedy to recognize their parental role and that Mr.

York does not meet this threshold because he has a remedy under the nonparental custody

statute, chapter 26.10 RCW.

Ms. Shows-Re's first contention fails. As recently decided by the Washington

Supreme Court, the existence of a statutory gap in remedy is not an element to be

established to maintain a de facto parentage action. A.F.J., 179 Wn.2d at 185. While

"whether a statutory gap exists is relevant to whether the court is prompted to apply an

equitable remedy or whether the parties are limited to statutory avenues," it is not an

element of de facto parentage to be proved. Id. Furthermore, no adequate statutory

remedy is available for a person seeking parentage, such as Mr. York. Id. at 186. The

permanent parental remedy provided pursuant to a de facto parentage action is not the

same remedy as the temporary and uncertain right to custody gained from a nonparental

custody petition. Id. (quotingJ.A.B., 146 Wn. App. at 426).

Second, citing MF., Ms. Shows-Re contends that de facto parentage is only

available when a child does not have two legal parents whose roles are already

established under our statutory scheme. She contends that because lB.R. has two

biological parents, Mr. York and the court cannot carve out a space for a third parent

without eroding the rights of the other two.

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Ms. Shows-Re's second contention also fails. The fact that lB.R. has two living

biological parents does not prohibit Mr. York from petitioning for de facto parentage. In

L.B., L.B. had two living, biological parents at the time of the petition. L.B., 155 Wn.2d

at 684-85. Nevertheless, the Washington Supreme Court adopted the de facto parentage

doctrine to recognize the parental role undertaken by Ms. Carvin early in L.B. 's life. Id.

at 707-08. The long-absent biological father's emergence into L.B.'s life at the time of

the petition did not prohibit application of the doctrine.

Having disposed of Ms. Shows-Re's two central arguments, we now examine

whether Mr. York has set forth a prima facie case that meets the four-part L.B. test:

H( 1) the natural or legal parent consented to and fostered the parent-like

relationship, (2) the petitioner and the child lived together in the same

household, (3) the petitioner assumed obligations of parenthood without

expectation of financial compensation, and (4) the petitioner has been in a

parental role for a length of time sufficient to have established with the

child a bonded, dependent, relationship, parental in nature."

L.B., 155 Wn.2d at 708 (quoting In re Parentage ofL.B., 121 Wn. App. 460, 487, 89 P.3d

271 (2004), aff'd in part, rev'd in part by 155 Wn.2d 679).

Mr. York clearly has set forth a prima facie case for the latter three parts. The only

part that warrants discussion is the first. Mr. York entered J.B.R.'s life while she was

young and filled the role left vacant by her absent biological father. The biological

father's decision not to support J.B.R. and not to seek a relationship with his daughter for

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more than a decade clearly evidences his consent for Mr. York to establish a parent-child

relationship with J.B.R. The biological father's noninvolvement in J.B.R.'s life for more

than a decade even fostered this relationship, as J.B.R. did not have an alternative person

acting as a father figure. It is uncontested that lB.R.'s mother consented to and fostered

a parent-child relationship between Mr. York and J.B.R. If Mr. York "undertook an

unequivocal and committed parental role with the consent of all existing parents but does

not have a statutorily protected relationship, justice prompts us to apply the de facto

parent test. This adequately balances the rights of biological parents, children, and other

parties." B.MH, 179 Wn.2d at 244. We distinguish MF. and follow L.B. based

principally upon the distinction that here, the noncustodial biological parent voluntarily

absented himself from his child's life, thus consenting to and fostering a relationship

between his biological child and the petitioning party.

Attorney Fees. Ms. Shows-Re requests an award of attorney fees pursuant to

RCW 26.09.140. That statute permits an award of attorney fees to a party in a dissolution

proceeding. However, this proceeding is one at common law. Ms. Shows-Re's request

for an award of attorney fees is therefore denied.

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CONCLUSION

We affirm the trial court's denial of Ms. Shows-Re's motion to dismiss. Under

appropriate circumstances, a former stepparent may petition for de facto parentage of a

child. Here, the biological father's voluntary long-term absence from his child's life

evidences his consent to and fostering of petitioner's parent-like relationship with J.B.R.

This case is thus similar to I.E., and distinguishable from MP

r----1 ( l

Lawrence-Berrey, 1.

WE CONCUR:

Brown, A.C.i. a Fearing, J. '

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