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January 01, 2014

Foster Parenting Does Not Prevent De Facto Parent Status

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re A.F.J., 2013 WL 6212017 (Wash.).

Where mother and her partner initially lived together and intended to raise a child, but mother’s drug use led to child’s placement in foster care with her partner, partner was able to prove she was a de facto parent. While foster parenting will not normally give rise to de facto status, mother’s treatment of partner as parent outside that relationship, showed she, not the state, consented to establish partner as having parental rights. 

Mother and her former partner had dated off and on for several years. In part, their relationship had been interrupted by the mother’s drug addiction and distance. During one period where she was heavily using cocaine, she became pregnant. Mother returned to Seattle and they resumed their relationship with the intent for her to get clean and parent the child together. 

The mother entered inpatient drug treatment. After successfully completing the program, she relapsed when she was eight months pregnant and attempted suicide. She enrolled in an inpatient perinatal program and gave birth to a son. The boy was given both of their surnames and the partner picked his first name. 

The mother and child left the hospital and moved in with the partner. She relapsed a few months later, causing the partner to call child protective services when she found mother passed out with a broken crack pipe and the child on the bed.

At the shelter care hearing, at the mother’s request, the child was placed with the partner on condition that she seek a foster care license. 

Over the next two years, the mother spent time in many in- and outpatient treatment programs and jail. The agency petitioned to terminate her parental rights. The partner filed a custody petition and claimed de facto parent status. 

The trial court found the partner established she was a de facto parent.The mother appealed. 

The Washington Supreme Court affirmed the trial court’s finding that the partner was a de facto parent The court noted that under state case law a de facto parent is a person who has “fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.”

The court analyzed whether there had been any statutory remedy created since its last holding addressing de facto parentage, that would be a preferred avenue for the partner. Although the legislature had considered bills to legislatively alter the prior opinions, nothing had been passed. The court noted that a nonparental custody award would not be the equivalent to de facto parent status, because, as a third party, the birth parent would be able to dissolve the custody when they became fit. 

Next the court considered whether the partner’s status as a foster parent prevented her from being a de facto parent. On appeal, the agency and mother argued that a foster parent should only be able to establish de facto parenting based on circumstances that occurred outside the foster parenting timeframe. The agency contended that allowing foster parents to petition for de facto status would undermine the dependency process. 

The court agreed this was a valid concern. However, the first element required to establish de facto parentage is that the parent “consented to and fostered the parent-like relationship.” Because in a typical dependency case, it is the state that consents to the foster parenting relationship, this element mitigates the concern. Even where the parent has a relationship with the foster parent, like an aunt or uncle, those are not parent-like relationships. 

Second, the person claiming de facto status must show they undertook the parenting duties without expectation of financial compensation. 

In this case, the mother consented to the parent-like relationship. She held out her partner as a parent, agreed to give the child the partner’s last name, and lived with and intended to raise the child together. Also, the partner had parented the child for some time without monetary compensation. She had in fact tried to decline the foster board rate, but the agency told her it would be problematic. 

Last, on the same facts and evidence showing the child had bonded with partner over three years, the mother did prove she had intended to and had completely assumed full parental duties.