In the Matter of the Dependency Of: K.D.M.S. ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
February 17, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Dependency of No. 47264-3-II
KDMS.
UNPUBLISHED OPINION
JOHANSON, C.J. — NM appeals his dismissal from dependency proceedings regarding
KDMS. He argues that the superior court erred when it concluded he was not a de facto parent
and that it was not in KDMS’s best interest to have NM as a parent. We hold that the superior
court did not err because even assuming, without deciding, that NM can rely on the de facto parent
doctrine to establish standing, he fails to meet the de facto parent requirements. Accordingly, we
affirm.
FACTS
In May 2014, VS gave birth to KDMS. During her pregnancy, VS and NM lived together,
shared an intimate relationship, and NM provided transportation to VS’s doctor appointments.
When KDMS was born, he tested positive for methadone and he was hospitalized for withdrawal
No. 47264-3-II
symptoms. NM was present for KDMS’s birth and he visited KDMS twice a day while KDMS
was in the hospital and cared for him during those visits.
In June, when KDMS was discharged from the hospital, the Washington Department of
Social and Health Services (DSHS) filed a dependency petition and KDMS immediately came
under DSHS’s care and custody. The dependency petition named NM as the alleged father. Under
an agreed shelter care order, NM was permitted to visit KDMS once a week for two hours,
supervised.
In September, a court-appointed special advocate (CASA) observed and reported on a visit
between NM and KDMS. KDMS seemed calm and cheerful around NM and NM was able to
soothe KDMS. NM expressed concerns about KDMS’s foster care. The CASA reported that
NM’s concerns were appropriate and that NM expressed an interest in caring for KDMS on a
permanent basis.
On October 14, NM entered an agreed dependency order. The agreed order increased
NM’s supervised visits with KDMS to twice a week for two hours per visit. It is undisputed that
NM never lived with KDMS.
In November, NM was identified as the father on KDMS’s birth certificate based on a
paternity acknowledgment. But genetic tests revealed NM was not KDMS’s biological father.
In January 2015, DSHS moved for NM’s dismissal from the dependency action. In
response, NM filed a motion and declaration to continue as a party to the dependency under the
“de facto parent” common law doctrine. NM declared that he was present for KDMS’s birth,
visited him in the hospital, cared for and lived with VS during her pregnancy, was listed on the
birth certificate, and signed the paternity acknowledgement. He stated that he and KDMS bonded
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and that he would feed, change, and play with KDMS during their visits, that he had scheduled
and prepared for a home visit though it did not occur, and that he visited KDMS during their
scheduled times. Finally, he said, “I am dedicated to remaining in [KDMS’s] life, as his de facto
parent, and I continue to be undeterred by any hurdle [DSHS] puts in my way.” Clerk’s Papers
(CP) at 168.
DSHS argued that NM lacked standing to intervene in the dependency proceeding because
RCW 13.04.011(5) limits “parent” for the purpose of dependencies to “‘biological or adoptive
parents.’” CP at 175 (quoting RCW 13.04.011(5)). DSHS further argued that even if de facto
parents could proceed in dependencies, NM should not be able to proceed because he does not
meet any of the factors for a de facto parent.
After hearing argument and considering the pleadings, the superior court found that NM
satisfied some, but not all, of the de facto parent common law factors. The court found and
concluded that
1. [NM] does not satisfy the requirements to establish parental rights under the
common law doctrine of de facto parentage
2. [VS] consented to and fostered a parent-like relationship between [NM] and
[KDMS]
3. [NM] assumed obligations of parenthood for [KDMS] by performing as a
parent with parental deficiencies and participating in [KDMS’s] dependency action
4. [NM] assumed obligations of parenthood without the expectation of
financial compensation
5. [NM] never lived with [KDMS] after his birth
6. [NM] and [KDMS] may have a bond
7. [NM] does not have a bonded dependent relationship that is parental in
nature
8. A bond that began in utero and fostered thereafter by a few months of visits
that ranged from two to four hours in length cannot establish a parental bond
9. [NM] indicated an intention to fully and completely undertake a permanent,
unequivocal, committed and responsible role in [KDMS’s] life
10. [NM] has parental deficiencies that have not been remedied
11. It is not in [KDMS’s] best interests to have [NM] as a parent[.]
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No. 47264-3-II
CP at 193. Based on its findings and conclusions, the superior court dismissed NM as a party to
the dependency with prejudice. NM timely appeals.
ANALYSIS
NM argues that the superior court erred in concluding that he failed to meet the
requirements of the de facto parent doctrine. Specifically, he assigns error to findings of fact and
conclusions of law 1, 7, 8, and 11. DSHS argues that NM failed to meet the criteria to establish
parental rights as a de facto parent of KDMS.1 We agree with the State.
A. LEGAL PRINCIPLES
1. STANDARD OF REVIEW
We review findings of fact for substantial evidence and conclusions of law de novo. In re
Custody of A.F.J., 179 Wn.2d 179, 184, 314 P.3d 373 (2013). We review conclusions of law by
determining whether they are supported by the findings of fact. In re Marriage of Rideout, 150
Wn.2d 337, 350, 77 P.3d 1174 (2003). If a determination concerns whether evidence shows that
something occurred, it is a finding of fact. Casterline v. Roberts, 168 Wn. App. 376, 382, 284
1
DSHS first argues that NM is not the biological nor adoptive parent of KDMS and, thus, does
not have standing as a parent for the purpose of the dependency proceedings as required by RCW
13.04.11(5). We assume, without deciding, that NM can rely on the de facto parentage doctrine
to attempt to establish standing. But here, because he does not meet the de facto parent criteria,
the superior court did not err in dismissing NM from the dependency action.
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No. 47264-3-II
P.3d 743 (2012). Unchallenged findings of fact are verities on appeal. Humphrey Indus., Ltd. v.
Clay St. Assocs., LLC, 176 Wn.2d 662, 675, 295 P.3d 231 (2013).
2. DE FACTO PARENTAGE
Washington common law first recognized the de facto parentage doctrine in 2005 in In re
Parentage of L.B., 155 Wn.2d 679, 708, 122 P.3d 161 (2005). The doctrine allows a court to
award “‘parental rights and responsibilities’” to individuals who otherwise do not meet the
requirements to establish parentage under the Uniform Parentage Act of 2002, ch. 26.26 RCW.
L.B., 155 Wn.2d at 708 (quoting C.E.W. v. D.E.W., 2004 ME 43, 845 A.2d 1146, 1152). L.B.
adopted the following criteria to establish standing as a de facto parent:
(1) [T]he 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.
155 Wn.2d at 708. Additionally, recognition of a de facto parent is limited to an adult who has
“‘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., 845 A.2d at 1152).
Accordingly, once a court recognizes a person as a de facto parent, it may then consider
whether to award an individual parental rights and responsibilities based on its determination of
the best interests of the child. L.B., 155 Wn.2d at 708 (quoting C.E.W., 845 A.2d at 1152). De
facto parents are not entitled to any parental privileges as a matter of right, but only as determined
to be in the best interests of the child at the center of a dispute. L.B., 155 Wn.2d at 708-09.
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No. 47264-3-II
B. NM NEVER LIVED WITH KDMS
NM argues that the superior court’s conclusion that he is not a de facto parent because NM
never lived with KDMS fails to recognize the limitations that the out-of-home dependency placed
on him. DSHS responds that NM cannot be a de facto parent because he never lived with KDMS.
We agree with DSHS.2
The superior court found that NM never lived with KDMS after his birth. This is a
determination based on the evidence of an occurrence and, thus, is a finding of fact. Casterline,
168 Wn. App. at 382. The parties do not dispute this finding. And because NM did not assign
error to this finding of fact, it is a verity on appeal. Humphrey Indus., Ltd., 176 Wn.2d at 675.
The second factor required to establish de facto parentage is that the petitioner must have
lived with the child. L.B., 155 Wn.2d at 708. In L.B., the court considered that the nonbiological
mother lived with the child for six years before it remanded to the superior court for a
determination under the de facto parentage doctrine. 155 Wn.2d at 684-85. And in In re Custody
of M.J.M., 173 Wn. App. 227, 236, 294 P.3d 746 (2013), an acknowledged but nonbiological father
who lived with the child for 14 consecutive months and under a temporary parenting plan for
2
Because all four criteria must be met in order to establish a de facto parent relationship, and NM
fails to meet at least one of the factors, we decline to review NM’s challenge to the fourth factor.
See In re Parentage of J.B.R., 184 Wn. App. 203, 208-13, 336 P.3d 648 (2014); In re Custody of
Shields, 157 Wn.2d 126, 145, 136 P.3d 117 (2006); In re Custody of A.F.J., 161 Wn. App. 803,
811, 260 P.3d 889 (2011) (each holding all four criteria “must” be met), aff’d, 179 Wn.2d 179,
314 P.3d 373 (2013); see also In re Adoption of R.L.M., 138 Wn. App. 276, 288-89, 156 P.3d 940(2007); Blackwell v. Dep’t of Soc. & Health Servs. (DSHS), 131 Wn. App. 372, 378, 127 P.3d 752(2006) (both holding de facto parentage was not established where one or more of the criteria were
not met).
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No. 47264-3-II
additional significant periods for the first three years of the child’s life, met this factor of de facto
parentage.
Our review of the legal effect of the fact that NM never lived with KDMS until after
KDMS’s birth is de novo. Casterline, 168 Wn. App. at 384. The superior court concluded that
NM does not satisfy the de facto parentage criteria. This conclusion is supported by the finding
that NM never lived with KDMS. Thus, the superior court did not err in concluding that NM does
not satisfy the de facto parentage criteria.
NM argues that “although the circumstances of the dependency meant NM was unable to
live in the same household as [KDMS], NM consistently sought to maximize his contact and
visitation with [KDMS] and even prepared his home for an in-home visit.” Br. of Appellant at 10.
NM’s argument is that the trial court “fail[ed] to recognize the limitations the out-of-home
dependency placed on NM.” Br. of Appellant at 10. But NM provides no reasoned argument why
the superior court should have considered the limitations of an out-of-home placement nor how
that consideration might affect the de facto parent analysis. Rather, he seems to urge this court to
conclude that a different test should apply to establish de facto parentage in the context of an out-
of-home dependency. However he does not fully explain what that different standard should be
or provide any reasoned argument nor legal authority to support this argument.
If NM does suggest a new standard, it would appear to be that his desire and intent to
maximize his contact and visitation with KDMS should satisfy the “must have lived with the child”
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No. 47264-3-II
factor. Here, although NM lived with VS while KDMS was in utero, KDMS entered foster care
immediately after his discharge from the hospital and NM never lived with KDMS after his birth.3
While NM’s actions to maximize his contact with KDMS and to potentially open his home
to KDMS may show an earnest interest in supporting the child, these efforts do not meet the
standard set in L.B. and affirmed in M.J.M. that a de facto parent must live with the child. And
again, NM presents no reasoned argument nor legal authority to support his assertion that his intent
and desire to parent in the future is an adequate substitution for the legal requirement that he live
with and provide care for the child for some period of time in order to be declared a de facto parent.
We therefore reject his argument.4
CONCLUSION
As stated in L.B., “attaining de facto parent status is ‘no easy task.’” 155 Wn.2d at 712.
Although the record shows that NM intended to and took steps to support KDMS in several ways,
3
We note that NM consistently attended all of the authorized supervised visits and prepared his
home for KDMS to visit and as a potential residence for KDMS.
4
Even if we reached the fourth de facto parentage factor of proving NM served in a “parental role
for a length of time sufficient to have established with the child a bonded, dependent relationship,
parental in nature,” his argument would still fail. L.B., 155 Wn.2d at 708. Despite NM’s prenatal
assistance to VS and his efforts to establish a bond with KDMS during his once-a-week hourly
and then twice-a-week two-hour supervised visits for approximately six to seven months, these
circumstances do not show that KDMS would be adequately bonded with and dependent on NM
for parental care for a sufficient length of time to meet the fourth factor. See In re Custody of
M.J.M., 173 Wn. App. at 236-38 (holding 14 months of continuous, live-in care provided by an
acknowledged but nonbiological father met this factor of de facto parentage).
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No. 47264-3-II
NM has never lived with KDMS and, thus, he cannot meet the requirements of de facto parentage.
Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, C.J.
We concur:
WORSWICK, J.
LEE, J.
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